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Freedom and security: squaring the circle

Jaume Saura Estapā
Professor of Public International Law (UB) and President of the Human Rights Institute of Catalonia
Jaume Saura Estapā

Jaume Saura Estapà

One of the main functions of the State is to provide its citizens with security. That is why in Hobbesian terms, we leave the state of nature and sign a social contract to create the Leviathan. However, security is not an absolute value in democratic societies and states. It must be linked to a respect for the rule of law and a guarantee of human rights. In an international context of growing concern about threats such as international terrorism and organised crime, this respect has not always been fulfilled.

It goes without saying that the plagues of terrorism and organised crime are themselves violations of human rights - of life, freedom and security. As a result, those intellectually and materially responsible for these crimes are responsible for the violation of human rights, even at international level, if the seriousness of the attacks means that they must be considered crimes against humanity. However, the institutional response to these illegal actions must be weighted against a respect for equally important values, such as freedom and human rights.

Professor Miguel Revenga, a Professor of Constitutional Law, has listed six ways in which tensions arise between security and freedom in the international arena: a) a disregard for international law, which has been and remains the cornerstone of peaceful relations between among States; b) the relativisation of the prohibition of torture and inhuman or degrading treatment (Abu Ghraib); c) the creation of areas beyond the remit of the law, such as Guantánamo, to try to circumvent the guarantees of the rule of law; d) the systematic invasion of citizens' privacy, beyond judicial control; e) the increase in restrictions on basic civil rights such as freedom of expression and freedom of association, and f) the establishment of new grounds for discrimination between nationals and foreigners, based on the definition of risk profiles using religious beliefs and ethnic characteristics.

The limitations on rights that is apparent at an international level can also be seen in Spain, according to the United Nations Human Rights Committee and the European Court of Human Rights. The regime of solitary confinement for 13 days, provided for by Articles 527 and 520 b) of the Criminal Trial Act, is not only a form of abuse in itself, but also fosters the use of torture and impunity and violates specific civil rights, such as the right to choose a lawyer, the right to medical care, and the right to have one's family and friends informed of one's arrest, etc. Moreover, torture is a continuing problem. Although not widespread, hundreds of cases are documented each year, and many of these take place in Catalan prisons. These cases receive little attention from the police, the government or the judiciary. In fact, the European Court of Human Rights has twice ruled against Spain (2004 and 2010) for failing to fully investigate credible allegations of torture. The tightening of immigration and asylum laws (2009) and the very existence of Foreigner Detention Centres, where we deprive people who have committed no crime of their freedom, and the prohibition of political parties and the initiation of criminal proceedings against media outlets such as the newspaper Egunkaria, basically for advocating the Basque Country's secession from Spain, are all part of the situation mentioned above.

However, the wave of withdrawals of civil liberties seems to have reached its high point. Guantánamo has been condemned by all and sundry and Obama has pledged to close it. The European Court of Human Rights has recently ruled against the United Kingdom for the murder and unjustified deprivation of liberty for civilians by the country's troops during the occupation of Iraq.1 The Spanish Constitutional Court overturned the decision of the Supreme Court to prohibit the establishment of a political party, Bildu, which has scrupulously abided by the controversial Parties Law. And after arduous legal proceedings lasting over seven years, the editors of the newspaper Egunkaria were acquitted of any terrorist links. Meanwhile, Spain has ratified the Protocol for the Prevention of Torture, and Catalonia has established a National Authority for the Prevention of Torture, headed by the Ombudsman, which is now visiting all kinds of detention centres. If all this means that we understand that the legitimate aspiration to a secure life is not achievable without full respect for the rules of democracy, the rule of law and human rights, then it means that our situation is not as bad as all that.

1. Verdicts of the Grand Chamber, 7 July 2011. (Back)