Volume 10 - Issue 45
/ September 2021
73
http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2021.45.09.7
How to Cite:
Vоlоshchuk, O., Kоlеsnyk, V., Shevchuk, A., Yushchyk, O., & Krainii, P. (2021). Human rights protection in the context of
combating terrorism: problems of finding the optimal balance. Amazonia Investiga, 10(45), 73-81.
https://doi.org/10.34069/AI/2021.45.09.7
Human rights protection in the context of combating terrorism:
problems of finding the optimal balance
Захист прав людини в умовах боротьби з тероризмом:
проблеми пошуку оптимального балансу
Received: July 16, 2021 Accepted: September 21, 2021
Written by:
Оksana Vоlоshchuk
24
https://orcid.org/0000-0003-0991-5605
Viktоriia Kоlеsnyk
25
https://orcid.org/0000-0002-0055-7920
Andrii Shevchuk
26
https://orcid.org/0000-0003-4501-0440
Olena Yushchyk
27
https://orcid.org/0000-0003-1371-3379
Pavlo Krainii
28
https://orcid.org/0000-0002-1263-9392
Abstract
The article examines the essence and nature of
terrorism in the light of the problem of
observance and protection of human rights, as
well as analyzes the problems that arise in the
implementation of anti-terrorist activities.
Emphasis is placed on the fact that it is difficult
to find a balance in the observance of human
rights in the implementation of various anti-
terrorist measures by law enforcement agencies
and the investigation of crimes related to terrorist
activities. It is concluded that the fight against
terrorism and the protection of human rights are
goals that cannot conflict with each other in a
democratic society. They complement and
mutually reinforce each other, so when taking
measures to stop terrorist activities, states are
obliged to adhere to key principles and norms of
international law, as well as specific
commitments made in connection with
participation in international human rights
agreements.
24
PhD in Law, Assоciatе Prоfеssоr, Hеad оf thе Dеpartmеnt оf Intеrnatiоnal and Custоms Law, Chеrnivtsi Institutе оf Law оf Natiоnal
Univеrsity "Оdеssa Law Acadеmy", Ukrainе.
25
PhD in Law, Assistant Professor of the Dеpartmеnt оf Intеrnatiоnal and Custоms Law, Chеrnivtsi Institutе оf Law оf Natiоnal
Univеrsity "Оdеssa Law Acadеmy", Ukrainе.
26
PhD in Law, Assоciatе Prоfеssоr of the Department of Criminal Law, Faculty of Law, Yuriy Fedkovych Chernivtsi National
University, Ukrainе.
27
PhD in Law, Assоciatе Prоfеssоr of the Department of Criminal Law, Faculty of Law, Yuriy Fedkovych Chernivtsi National
University, Ukrainе.
28
Assistant Professor of the Department of Public Law, Faculty of Law, Yuriy Fedkovych Chernivtsi National University, Ukrainе.
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Key words: terrorism, terrorist activity, human
rights, restriction of human rights, counteraction
to terrorism.
Introduction
Terrorism did not arise today or yesterday, but its
scope in the third millennium is not just
impressive, it is appalling. A few years ago,
many hoped that with the advent of the 21st
century, the era of universal peace and harmony
that humanity had long dreamed of would finally
begin on our planet. Such hopes were expressed
not only by ordinary people but also by many
famous politicians and statesmen. But,
unfortunately, the following events soon
convincingly proved that these were just dreams,
the realization of which is still quite far. In
particular, in the 21st century, the problem of
terrorism has become more acute than ever. The
new century began with large-scale bloody
terrorist attacks with numerous victims: the
tragic day of September 11, 2001 in New York
or the events of October 2002 in Moscow,
regarding "smaller" terrorist acts, the media
reported about them almost daily.
In modern conditions, due to the main political,
economic, social, and cultural contradictions of
national and international life terrorism has been
transformed into a large-scale and complex
socio-political phenomenon of national
(country), regional and international scope.
Nowadays confirm that terrorism, due to its
specificity, as an accessible and often effective
form of violence, tends to spread, expand,
increase the number and sophistication of
terrorist attacks. In recent years, there has been
an escalation of terrorist activity in European
countries. Accordingly, this leads to the
formation of an appropriate regulatory
framework in the field of counter-terrorism, as
well as the establishment of effective cooperation
between States and the development of common
standards in this area within the European space.
Such processes take place in many foreign
countries. However, the lack of common
approaches to the understanding the essence of
terrorism, the possible restrictions on certain
human rights and freedoms during emergencies,
as well as the proportionality and adequacy of
these restrictions to the goal pursued by counter-
terrorism States, in various European countries
has a negative impact on the coordination of law
enforcement agencies in combating this negative
phenomenon.
Literature Review
The problem of terrorism has long remained open
due to the complexity and ambiguity of the
phenomenon itself. At the same time, it cannot be
said that the problem of terrorism is unexplored.
In particular, among the thorough studies should
be singled out the works of B. Jenkins (1975),
W. Laqueur (1977), J. Alexander (1979), J. Bell
(1978), B. Crozier (1974), L. Bonanate (1979),
G. Newman & R. Clarke (2008), R. Jacquard
(2002) and others.
In addition, there are now many works at the
level of monographic research: P. Wilkinson
(1987), "Trends in International Terrorism and
America's Response", B. Hoffman (2003) "Inside
Terrorism", V. Lipkan (2000) "Terrorism and
national Security of Ukraine" and V. Antipenko
(2005) "The fight against modern terrorism:
international legal approaches", etc.
Despite such a large amount of researches on the
phenomenon of terrorism, and the unconditional
urgency of the problem of human rights in the
context of the international legal fight against
terrorism, in the legal literature, terrorism and
human rights are usually considered separately.
Moreover, despite the development at the
international level of scientific debate on the
restriction of human rights in order to ensure the
effectiveness of counter-terrorism activities of
States, in the domestic legal literature there are
almost no researches on this issue. Meanwhile, in
our opinion, this is one of the most relevant
theoretical and practical issues in the study of
current trends in the fight against terrorism.
Methodology
Any process of cognition is based on the
fundamental choice of methods that can play a
decisive role in its course and determine its
ideological core and purpose. The
methodological basis of the study consists of
philosophical, general scientific and special legal
methods. Only the use of these methods in a
Vоlоshchuk, O., Kоlеsnyk, V., Shevchuk, A., Yushchyk, O., Krainii, P. / Volume 10 - Issue 45: 73-81 / September, 2021
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system allowed to obtain complete, objective and
promising results from the standpoint of
integrated, systematic and other approaches.
The philosophical (dialectical) method, which
allowed to comprehensively and fully formulate
the main threats of terrorism for human rights, as
well as to reveal the main problems of the
democratic response to terrorism, became the one
of the main methods of scientific research.
The use of the axiological method allowed to
substantiate the importance of implementing
coordinated actions of States in the fight against
terrorism.
In order to analyze and find out the content of the
relevant rules of international treaties and acts of
international organizations in the field of
research, certain methods of interpretation of law
were applied.
Results and Discussion
THE CONSEQUENCES OF TERRORISM
FOR HUMAN RIGHTS
Nowadays the world has entered a qualitatively
new stage of its development, connected with the
influence of universal regularities of the process
of social transformation. Economic globalization
and integration of States into a single world
system is a manifestation of this transformation.
Globalization leads to the establishment of a
single global socio-economic, political and legal
space, the formation of a unified information
system, the solution of common problems in the
field of ecology, socio-economic development,
the preservation of peace and the fight against
terrorism in all its manifestations and so on
(Tymoshenko., Maksymov., Makarenko.,
Kravchenko., & Kravchenko., 2021, р. 11).
In modern literary sources, it is increasingly
possible to find the idea that terrorism at the turn
of decades has become a universal disaster that
knows no borders. And it really is. It poses one
of the most serious threats to international peace
and security, and it is a major threat to
fundamental human rights, as it aims simply to
eliminate human rights, democracy, and the rule
of law. And this is confirmed by statistics.
Over the last decade, thousands of civilians have
been killed or injured in terrorist attacks, millions
have been displaced or forced to flee their homes,
many women and children have been enslaved
and subjected to violence, including sexual one
(Zelinskaya, 2017, p. 491-492).
It has long been recognized that terrorism strikes
a direct blow at the values underlying the Charter
of the United Nations and several other
international treaties, in particular such as:
respect for human rights; rule of law; rules of war
that protect the civilian population; tolerance
between peoples and countries; and the peaceful
settlement of conflicts (Office of the United
Nations High Commissioner for Human Rights
(2008). Therefore, it can be said with confidence
that terrorism is certainly a negative
phenomenon, an anti-value of both international
and domestic law, as it directly affects the most
important (fundamental) human rights.
Destabilization of the situation in a country or
region, undermining peace and security, law and
order, and thus the destruction of civil society
and democracy as a result of terrorist acts
threaten the socio-economic development of
states and have a strong negative impact on some
groups. As a result, it negatively affects the
observance of fundamental human rights.
As the UN Special Rapporteur on Human Rights
and Terrorism, Kufa Calliopi, once has
remarked: "In fact, there is probably no human
right that is not adversely affected by terrorism"
(Calliоpi, 2004, p. 15). The duty of the state to
protect the rights of everyone under its
jurisdiction is consistently observed by regional
human rights courts and international
organizations, including UN bodies working
under the human rights treaty. By adopting
resolutions against terrorism in accordance with
Chapter VII of the UN Charter, the Security
Council stated that States should be held
accountable for non-compliance with
international legal obligations to take active
actions against terrorism. States must act against
terrorism by all legal means and methods at their
disposal. In this regard, V.A. Kartashkin notes,
"The world today faces a dilemma: to ensure the
security of states and human rights through
compliance with the UN Charter and the
strengthening of the UN or to combat terrorism
and other human rights violations through
unilateral action by force and further restriction
of fundamental rights and freedoms of man and
citizen. A secure world cannot exist without
respect for human rights" (Kartashkin, 2003,
p. 46).
In his report "Unity in the fight against terrorism:
recommendations on a global counter-terrorism
strategy" (United Nations, 2006) (A/60/825)
Secretary-General of the UN rightly warned the
international community that "the protection of
human rights is an essential condition for the
implementation of all aspects of the counter-
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terrorism strategy and stressed that effective
measures to combat terrorism and protect human
rights are goals that do not conflict with each
other, but complement and mutually reinforce
each other".
The legal literature usually emphasizes that there
are three rather separate areas in which terrorism
threatens social and political values, directly or
indirectly related to the issue of full realization of
human rights and fundamental freedoms: life,
liberty, and dignity of the person; democratic
society; social peace and public order.
Threat to life, liberty and dignity of the person
The right to life is the basis for all other human
rights, while individual freedom and dignity are
the ultimate goal of human rights.
Art. 3 of the Universal Declaration of Human
Rights (1948) states that everyone has the right
to life, liberty, and security of person, and Art. 5
prohibits cruel, inhuman, or degrading treatment
or punishment.
According to paragraph 1 of Art. 6 of the
International Covenant on Civil and Political
Rights (1966) the right to life is an inalienable
right of every human being. Cruel, inhuman or
degrading treatment or punishment is prohibited
by paragraph 1 of Art. 7 of the Covenant. The
right to liberty and security of person is enshrined
in paragraph 1 of Art. 9 of the Covenant. Similar
norms are contained in human rights documents
at the regional level.
It should be emphasized that the consolidation of
these rights implies not only a negative
obligation of states to refrain from violating them
but also, they (states) have a positive obligation
to take measures to prevent their violation by
anyone, including terrorists. Meanwhile, when
committing terrorist acts, these rights are violated
in the most direct way, because people die, are
deprived of their liberty, other suffering is
inflicted on them, their property is destroyed, and
so on. This reveals the direct link between
terrorism and human rights violations. As a
pattern, in March 2012, the terrorist Mohammed
Mera, a 24-year-old native of Algeria, committed
three attacks, murdered seven people - 3
servicemen and 4 students of a Jewish school. 5
people were injured. These events were widely
covered in the French and world media.
Demonstrations in memory of the victims of this
terrorist attack took place in Paris and several
other cities in France. Former French President
Nicolas Sarkozy has even offered to increase
responsibility for visiting extremist websites
(RBC.UA, 2012).
Among the extraordinary examples is the tragedy
experienced by the French in early 2015 as a
result of the activities of Islamist terrorists. On
the morning of January 7, several armed
Islamists stormed the editorial office of the
famous magazine Charlie Hebdo and opened fire.
As a result of this terrorist attack, 12 people were
killed: 10 journalists of the publication and 2
policemen. The international reaction to the
tragic events in the world was not long in coming
- some countries decided to tighten security
measures. Others expressed condolences to the
French government and people (RFI, 2015).
Thus, in both the first and the second cases, there
is a clear link between terrorism and human
rights violations.
The threat to democracy
In addition to the direct violation of human rights
by terrorists, there is also an indirect link between
terrorism and human rights violations. This is the
case when States take harsh, incompatible human
rights actions in response to the threat of
terrorism. As K.K. Koufa notes, "an indirect link
can be traced in cases where the state’s response
to terrorism entails the application of strategies
and methods that go beyond what is permitted by
international law and leads to human rights
violations, including, in particular, extrajudicial
executions, torture, unfair trials and other forms
of unlawful repression that violate not only the
rights of terrorists but also innocent citizens"
(Kalliopi, 1999).
In addition, terrorism can have the following
negative consequences for a democratic society:
undermine the foundations of legitimate state
power; to put in place ideological and political
mechanisms that contribute to the planting of a
model of society favorable to terrorists; to
prevent citizens from exercising their right to
participate in decisions that affect their lives;
undermine the principles of pluralism and the
democratic order of society by creating
unfavorable conditions for the application of
constitutional norms; to stop the process of
democratic development and democratization of
society; to slow down the process of free
political, economic, social and cultural
development; lead to the destabilization of a
democratic society even in cases where terrorism
does not pose a real threat to the life of that
society; create conditions for the expansion of
terrorist activities and the growth of terrorists,
etc.
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Thus, in countering terrorism, a democratic state
faces an inevitable problem. It must effectively
combat the terrorist threat to citizens and the state
itself, without violating human rights, the
democratic process, and the rule of law. On the
one hand, a democratic government and law
enforcement agencies must avoid the very harsh
response that many terrorist groups deliberately
seek to provoke to destroy democracy. On the
other hand, the government's inability to enforce
the law, protect people's lives and property, can
undermine its authority and credibility. The fight
against terrorism is further complicated by the
fact that law enforcement agencies must comply
with the restrictions imposed by human rights
law, while terrorists are free from such
restrictions. In any case, this does not give any
grounds for abandoning democracy in the fight
against terrorism.
Threat to the social world and public order
Terrorism today is not only a de facto daily
terrorist attack with a large number of victims but
also a large-scale and complex socio-political
phenomenon of planetary significance, which
has a systemic basis due to the main political,
economic, and social contradictions of
international life (Bilyanska, 2013).
Terrorist acts inevitably create social and
political chaos. Instilling fear and creating
conditions conducive to the destruction of the
existing social regime is one of the goals of
terrorists.
In the long run, the negative impact that terrorism
has on the social order can shake the foundations
of the state system and pose a threat to the very
existence of the state. This is particularly the case
when terrorist activities involve drug trafficking,
arms trafficking, political assassinations, and
other activities of international organized crime,
as well as when terrorism manifests itself in the
form of fierce insurgency and the violent
overthrow of the existing country regime. This
puts the country in crisis, destabilizes the system
of state power, which, in turn, endangers the
international legal order.
The UN, first of all, the UN General Assembly
and the UN High Commissioner, play a huge role
in the formation of real protection mechanisms
against the threat of terrorism. The 60th session
of the United Nations discussed the protection of
human rights and fundamental freedoms in the
fight against terrorism and stated that any
measures taken to combat terrorism should be
ensure by states in compliance with their
obligations under international law, in particular
human rights law.
On an international summit on democracy,
terrorism, and security, which was held in
Madrid on 10 March 2005, the UN Secretary-
General outlined 5 elements of a strategy to
respond to the threat of terrorism based on
respect for human rights: 1. Protecting human
rights in the fight against terrorism; 2. To carry
out explanatory work among dissatisfied groups
so that they do not choose tactics of terrorist
actions; 3. Deprive terrorists of the means to
carry out their attacks; 4. Deter states from
providing support to terrorist groups; 5. Create
potential in the state to prevent terrorism. UN
Secretary-General Kofi Annan (2005) also noted
that "measures taken by many States violate
human rights and fundamental freedoms and
warn that human rights violations cannot
contribute to the fight against terrorism" (United
Nation, 2006).
The special human rights bodies in the UN
system pay close attention to the protection of
human rights and the fight against terrorism
within their respective mandates and resources.
For example, in May 2005, the Committee
against Torture adopted two decisions that serve
as an important guideline for the protection of
human rights in the fight against terrorism. Both,
the case of Agiza v. Sweden and Brady v.
France's, address the issue of deportation of
convicts at risk to their lives and health.
The role of international human rights bodies and
international courts has increased, due to various
objective reasons, among which the growing
importance of effective protection of human
rights and freedoms and the need to address
issues related to armed conflict and international
terrorism. One of the most effective mechanisms
for protecting the rights and freedoms of citizens
are the activities of the European Court of
Human Rights. The analysis of ECtHR decisions
is of particular importance, including the
application of Art. 15 of the Convention for the
Protection of Human Rights and Fundamental
Freedoms (Council of Europe, 1950), in which it
is established that in the event of war or other
extraordinary circumstances threatening the life
of the nation, it is possible for the State to take
measures that deviate from its obligations under
the Convention, but only to the extent that the
urgency of the situation so requires, provided that
such measures do not conflict with other
obligations of the State under international law.
And this even though the Convention as a whole
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has a "rigid" anthropocentric and humanistic
orientation (Drozdov, 2018).
Quite often, law enforcement agencies in some
countries, when confronted with persons accused
of terrorist activities, do not always adhere to
conventional safeguards. And this becomes the
basis for the victims to appeal to the ECtHR for
protection and restoration of justice. Thus, since
1961, there has been a fairly rich jurisprudence in
which the Court has expressed its views on the
treatment of detainees, gave an interpretation of
the concepts of "terrorist activity" and
"involvement in terrorism." For example, in the
decision in the case of Ireland v. The United
Kingdom (Ireland v. The United Kingdom,
1977), the ECtHR found that during the arrest,
further detention and pre-trial investigation of
Irish citizens suspected of terrorism, UK law
enforcement officials significantly exceeded the
powers granted to them. In particular, during
interrogations, such means of mental and
physical violence as standing under the wall,
deprivation of food, drink and sleep, using the
noise, which, in essence, is a violation of Art. 3
of the Convention ("Prohibition of Torture")
(Council of Europe, 1950). The Court also issued
a similar decision in the case of Aksoy v. Türkey
(Aksoy v. Türkey, 1996).
Based on the case-law of the ECtHR on the
application of paragraph 2 of Art. 15 of the
Convention, it should be noted that the Court has
consistently pointed out the impossibility of
restricting, even in the context of special legal
regimes, certain rights and freedoms which are
absolute and enshrined in Articles 2, 3, 4 (§ 1)
and 7 of the Convention, namely life; prohibition
of torture; prohibition of enslavement;
prohibition of conviction for actions or omissions
that did not constitute a criminal offense at the
time of their commission, prohibition of
imposition of a heavier punishment than that
applied at the time of its commission.
At the same time, the ECtHR highlights rights
and freedoms that, on the contrary, may be
restricted following certain provisions of the
Convention, usually in the interests of national
security and public order, the economic well-
being of the country, to prevent riots or crimes,
to protect health or morals or to protect rights and
freedoms, other people. Such rights include the
right to respect for private and family life,
housing and correspondence; freedom of
thought, conscience and religion; freedom of
expression; freedom of assembly and
association; the right to freedom of movement;
prohibition of deportation of a foreigner-only for
the execution of a decision made under the law.
Thus, the analysis of the case-law of the ECtHR
allows us to conclude that the main criteria that
guide the Court in exercising control are:
a) the nature of the rights covered by the waiver;
b) the grounds for imposing a state of emergency;
c) the duration of the state of emergency.
Thus, it can be argued that today, scholars and
politicians have given much thought to the
challenges facing modern Western democracies
in the field of human rights. Many opinion polls
show that many citizens in some Western
countries are aware of the need to empower
governments to ensure their security and support
the granting of broader rights to intelligence
services. Proponents of restrictions on citizens'
rights argue that measures taken to counter the
terrorist threat are a temporary departure from the
principles of liberal democracy that are
permissible in an emergency. At the same time,
libertarians ruthlessly criticize the oppression of
civil liberties. In this sense, the government
transforms democracies into police states
(Shirоkоva, 2014, p. 30-31).
When it comes to terrorism, there is a possibility
that there may be a serious conflict between two
main areas of concepts of human rights and the
fight against terrorism: the first concerns the act
of terrorism itself; the second concerns those
measures that may be taken by official bodies in
the process of countering terrorism.
Respect for human rights in carrying out anti-
terrorist activities
Modern problems of the democratic response
to terrorism
Terrologists often point out that with a
democratic response to terrorism, democracy can
be significantly harmed or destroyed altogether
by an excessive response from the state. As a
rule, with a relatively low intensity of terrorist
violence, any restriction of democratic freedoms
in society is perceived very negatively, as the use
of the unfavorable situation of freedoms in order
to increase its interference in the privacy of
citizens, facilitate control over their actions and
lower the bar of requirements for themself.
The centuries-old struggle of the progressive
forces of society for the fundamental rights and
freedoms of citizens has taught us to be
extremely negative about any restriction, even
temporary and forced. As Benjamin Franklin
once remarked: "The one who sacrifices freedom
for the sake of peace deserves neither freedom
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nor security" (Vоlоkh, 2014). At the same time,
the right and obligation of states to use all
possible means to protect society from criminal
encroachments for the benefit of the latter has
been recognized since ancient times. However,
often the intensity of terrorist violence forces the
state to take decisive action, which can cause
ambiguity both within the state and in the
international community. Particularly harsh is
the reaction to such restrictions in societies that
have survived totalitarian regimes.
However, as was noted above, according to the
Convention for the Protection of Human Rights
and Fundamental Freedoms (Council of Europe,
1950), the official imposition of martial law or a
state of emergency, or the establishment of
another public danger that threatens the life of the
nation, may justify the suspension (restriction) of
most of the relevant rights and freedoms. Art. 15
"Dеrоgatiоn in timе оf еmеrgеncy" says: "In timе
оf war оr оthеr public еmеrgеncy thrеatеning thе
lifе оf thе natiоn any High Cоntracting Party may
takе mеasurеs dеrоgating frоm its оbligatiоns
undеr this Cоnvеntiоn tо thе еxtеnt strictly
rеquirеd by thе еxigеnciеs оf thе situatiоn,
prоvidеd that such mеasurеs arе nоt incоnsistеnt
with its оthеr оbligatiоns undеr intеrnatiоnal
law" (Art. 15, Council of Europe, 1950). The
Secretary General of the Council of Europe shall
be informed of the relevant decision, the
measures taken and the reasons for their
adoption, as well as their repeal and renewal.
Thus, Art. 15 allows for restrictions only if the
necessary conditions laid down in the
Convention are met and in accordance with the
established procedure.
The concept of "militant democracy"
Recently, the very view of democratic measures
to protect the state system has changed
significantly. According to Professor E. Jesse,
the concept of "militant democracy", which is
supported in some countries and means the
judicious use of force in the rule of law to protect
democratic rights and freedoms, is based on the
following principles: proclamation and
upholding of priority values the majority of the
population; reliable state protection of
proclaimed values; preventive protection by legal
and other means from possible threats
(Khlobustov & Fedorov, 2000, p. 91-92).
As we can see, this concept has a preventive
character - it provides for the restriction of
democratic freedoms in case to protect the
priority values of society (Moskalkova et al.,
1998). In fact, the focus on the superiority of such
values over individual freedoms and rights is
enshrined in the Convention for the Protection of
Human Rights and Fundamental Freedoms
(Council of Europe, 1950), as well as in the
Intеrnatiоnal Cоvеnant оn Civil and Pоlitical
Rights (United Nations Human Rights Office of
the High Commissioner, 1966) and Univеrsal
Dеclaratiоn оf Human Rights (United Nations,
1948). Thus, the European Convention's rights to
freedom of thought, conscience and religion (Art.
9), the right to freedom of expression (Art.10)
and the right to freedom of peaceful assembly
and association (Art. 11) may be subject to
restrictions established by law and the need for a
democratic society in the interests of public
safety, public order, health and morals, or to
protect the rights and freedoms of others. And the
last two - also in the interests of national security
and in order to prevent riots and crimes. In
addition, restrictions on the rights related to
freedom of expression may take place (if
required by law) in the interests of territorial
integrity, protection of the reputation or rights of
others, to prevent the disclosure of information
obtained in confidence, or to maintain the
authority and impartiality of justice. As correctly
noted by O.M. Khlоbustоv and S.G. Fedorov,
similar grounds for restriction are established by
the European Convention on Freedom of
Opinion and Transfer of Information
(Khlobustov & Fedorov, 2000, p. 96).
In general, the starting point in resolving the
issue of restricting the rights of individuals,
especially the right to privacy is the balance of
interests of the individual and society. According
to A.G. Spirkin, "law is a necessary condition for
the exercise of freedom of free citizens in society.
But if a person wants to be free, he must limit his
freedom to the fact of the freedom of others, and
this is his own legal relationship. Law is
something sacred because it is an expression of
the idea of freedom, the idea of law and order in
society" (Spirkin, 2001, p. 602).
In terms of restrictions on personal rights,
European states have traditionally emphasized
the importance and possibility of police and state
interference in a person's private life if there is a
greater threat to society. Accordingly, a culture
of respect for government in Europe makes it
possible to violate the rights of government
rather than citizens.
It should be understood that the existing
consensus in society in wartime in the face of a
large-scale threat of possible restriction or
suspension of civil rights and freedoms, in a
situation of terrorism is much more difficult and
80
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depends on society's perceived level of threat
from terrorism. According to Robert Pifotski, a
former member of the Federal Trade
Commission, one of the most active defenders of
privacy, "September 11 has changed a lot. In a
society that protects privacy, terrorists feel like
fish in water. And if in order to identify them, it
is necessary to give in to this inviolability, the
majority is ready to say: "Well, we agree" (Mike.,
Heather. et al., 2001, p. 41).
The example of the United States and other
Western countries in the face of the terrorist
threat confirms the rule that violations of civil
liberties must be investigated concerning the
fundamental freedom of self-preservation and
preservation of a political system within which
these and other freedoms make sense. This
implies that the relationship between terrorism,
intelligence, and civil liberties is a matter of
balance.
It must also be understood that the fight against
terrorism and the protection of human rights are
goals that cannot conflict with each other. These
are complementary and mutually reinforcing
goals, so when taking measures to stop terrorist
activities, states are obliged to adhere to key
principles and norms of international law, as well
as specific commitments made in connection
with participation in international human rights
agreements. These principles, norms, and
obligations define the limits of permissible
lawful actions of the authorities aimed at
combating terrorism.
Conclusions
Thus, in view of the above, it can be argued that
most researchers of terrorism conclude that
terrorism today poses the most serious threat to
international peace and security, and is therefore a
major threat to fundamental human rights,
especially natural rights and freedoms. Despite the
fact that in this area every state is trying to develop
an effective policy to protect its citizens from the
threat of terrorism, it is often too severe, because
there are violations of fundamental human rights -
especially personal, access rights to information,
freedom of the press and others, and in emergencies
- special services are endowed with broad powers
and have access to bank accounts, eavesdropping on
conversations, monitor correspondence on the
Internet, etc. States forget that by pursuing their
counter-terrorism policies, they often violate the
constitutional rights of citizens. The activity of the
state in the fight against terrorism should consist not
only of force, but also of preventive measures,
which is extremely important in a legal democratic
society.
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