The notion of security in the European Court of Human Rights case law: references to the right to a fair trial

Abstract

Summary

1. Premise: an approach to the notion of security from a semantic, historical and legal perspective. 2. The notion of security in the European Court of Human Rights case law and its threefold nature. 2.1 The human right to security in the ECHR. 2.2 Security as a limit to the exercise of certain ECHR human rights. 2.3 Security as a limit to certain guarantees related to the right to a fair trial (Arts. 6.1 and 6.3.c ECHR). Conclusions: “human security” vs. security as a limit to rights.

Abstract.

The concept of security entails a series of questions that relate, first and foremost, to the scope of its meaning. Some of these dilemmas derive from a mere observation: the current social, political, economic and cultural reality shows that few notions, such as security, are so present in all the fields in which human beings develop. In a certain sense, security surrounds everything and everything can be lead back to that basic and primordial human need. This was understood by thinkers of the importance of Macchiavelli, Hobbes or Locke who, among others, placed security at the origin of the modern State. All of these reasons and circumstances allow us to understand why security is today a legally relevant good, recognized from different perspectives in our constitutional texts and international treaties of particular significance, such as the European Convention on Human Rights (ECHR).

Thus, on the one hand, the Spanish Constitutional Court (TC) and, on the other, the European Court of Human Rights (ECtHR) have been responsible to delimit the legal meaning of this notion, each within their respective spheres of competence. In this sense, the TC has interpreted the notion of security contained in the Spanish Constitution of 1978 (EC), giving it a triple meaning: basic principle of the legal system ("legal security"), fundamental right (Art. 17.1 EC), and "citizen security" (Arts. 104 and 149.1.29 EC). Furthermore, the ECtHR recognises that security, within the framework of the ECHR, stands out for its threefold nature: once again, fundamental right (Art. 5 ECHR); security as a clearly established boundary as regards to the exercise of certain rights enshrined in the Convention (Arts. 6, 8-11, Art. 2.3 Prot. Ad. nº 4 y Art. 1.2 Prot. Ad. nº 7 ECHR); and security as an implicit limit to the effectiveness of a certain procedural guarantee: the right to legal assistance (Art. 6.3.c ECHR). In relation to the latter case, the ECtHR (STEDH of 13 September 2016, Ibrahim and others v. the United Kingdom) has been concerned to point out that the existence of "compelling reasons" related to the need to protect national security, would justify the temporary suspension of the right to legal assistance, notwithstanding the letter of Art. 6 ECHR does not protect this interpretation.

The study focuses on these aspects and concludes with some considerations on the inability (or unwillingness) of the TC and the ECtHR to adopt the notion of "human security" as an interpretative paradigm in the practice of defending human rights, and on the dangers involved in rewarding utilitarian logics in the development of that same practice.