Some of the politicians who are in power, have downplayed the publication by G4media.ro of 10 bills on security laws (‘there are no final drafts’, ‘some incomplete proposals’), even the President of the country veiledly threatened those who have leaked the bills to the media („and we know who it was”) .

These reactions show not only that the political leaders whose mission is to defend the rule of law and ensure respect for the Constitution and fundamental rights and freedoms do not understand the seriousness of information in the public sphere, but want to stifle any reaction of a society that reacts instinctively to the nonsensical explanations that are given. Even if we don’t have any comments on the texts, there are three aspects that simply stand out:

1. The intelligence services were allowed to formulate their own laws freely, which obviously led to some proposals that are in gross violation of fundamental rights. We are not talking about some grammatical errors or 1-2 articles that would be more problematic, but about a whole system in which the civil control over the secret services is non-existent, reduced or minimized, and the guarantees of democratic supervision of the activity of the secrets services are purely formal or lacking entirely. Even if these are now only unofficial proposals, the mere fact that they have been put on paper worries us, because we believe that they contain the vision of the institution that proposed them, a completely undemocratic and outrageous vision;
2. The lack of desire for transparent public debate, including the reaction of President Iohannis, denotes a serious lack of understanding of fundamental democratic concepts – the need for real (not mimicked) public debate. The President’s statement that he “will make sure that the proposal will be cohesive”, denotes an institutional commitment devoid of any willingness to open up the space for debate on a project as important as this;
3. The institution of the whistleblower is not known to the President of Romania. We consider very serious the veiled threat made by the president to the person / persons who did a major public service to inform the citizens about this project. The President of Romania must promote protection, but also respect for whistleblowers, the media and journalistic sources. However, through the statement made on this subject, it made more vulnerable and brought a direct attack both on the whistleblowers and on the freedom of the press.

To see instead what does NOT exist in the proposed security laws and what issues we should discuss when reforming the legislation governing the field of national security, we propose to identify the main questions we should ask ourselves, starting from the principles specified by the European Union Agency for Fundamental Rights (FRA) in a 2017 report on the functioning of the secret services¹:

1. What are the stages of the legislative process of adopting new legislation in this area? Are the proposed deadlines for public debate sufficient, seeing as the subject of these laws, as well as the magnitude of the changes that the decision-makers want to impose, are of major interest to society? Who are the actors consulted and in what stage? Will the opinion of international human rights experts be sought?
2. How will the proposed laws respect the imperative norms of legislative technique provided by the Romanian legislation (by Law 24/2000)? When will a “preliminary assessment of the impact of the new regulations on fundamental human rights and freedoms” be made, according to art. 7 (paragraph 3 ^ 1) of the mentioned law, and by whom? Being a complex legislation, there are preliminary theses, according to art. 28 of the same law on the norms of legislative technique for the elaboration of normative acts? Are there or will we have any established specialized commissions, according to art. 27? Who will be part of them?
3. Are there any guarantees of fundamental rights, a fundamental element of the information law, with guarantees of confidentiality and data protection, in order to collect, store, disseminate and have access to them?
4. Which bodies will ensure democratic control and how independent are they? Have models from other European countries been studied (judges’ commissions, experts, data protection authorities, etc.)? Do these bodies personally have the necessary technical knowledge to independently assess the often highly technical activity of intelligence services?
5. Will the reports of these democratic control bodies be public? Will they contain detailed analyzes of the democratic control system and the activities carried out within it (for example, authorizations for surveillance measures, ongoing control measures, ex-post investigations and complaint handling)?
6. Are there specific legal procedures to protect the professional privilege of groups such as members of parliament, members of the judiciary, lawyers and media professionals? Is the implementation of these procedures monitored by an independent body? How to avoid infiltration of newsrooms by intelligence services? (in accordance with the European Parliament Resolution of 21 May 2013 on the EU Charter: standard rules for media freedom in the EU) ²
7. Is there effective protection of whistleblowers in intelligence services? Do those warnings need a regime specifically tailored to their field?
8. How are the rules on how international intelligence exchanges are conducted and by whom? Can these bodies determine whether the processes for transferring and receiving information respect fundamental rights and whether they provide appropriate safeguards?
9. Are there judicial and extrajudicial bodies with powers to recover damages, that have as their competence and attribute to effectively assess and make decisions regarding the complaints of individuals related to supervision?
10. Supervised persons are informed, after the end of the surveillance? Do intelligence services test the legitimate purpose and proportionality before limiting access to information in the field of national security? Is there a competent authority to assess the level of confidentiality?
11. What are the activities and what role can national human rights bodies and civil society organizations play as „guardians” in the system of ensuring democratic control?

These are the fundamental questions regarding the control of intelligence services, based on the European principles developed by the European Union Agency for Fundamental Rights (FRA).

At the moment they are ignored by all political statements or in projects that have become public. Given the first form of these proposals, we are convinced that human rights and the principles of good governance are the last concerns in the process of amending these laws. For a country where even now, 30 years after the fall of communism, we still live with the trauma of the Securitate, the only possible way for these laws to reach a form close to the principles of a democratic state and in accordance with human rights, is through an extensive process of public debate and by integrating the answers to the above questions.

Yes, we are worried. And we have good reasons why.

 

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¹Supervision by intelligence services: protection measures and ways to recover damage to fundamental rights in the European Union – Volume II Summary –https://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-surveillance-intelligence-services-vol-2-summary_ro.pdf. See also the full report in English https://fra.europa.eu/en/publication/2017/surveillance-intelligence-services-fundamental-rights-safeguards-and-remedies-eu

² “Calls on the Member States to adopt legislation to prevent the infiltration of newsrooms by security officers, given that these practices jeopardize freedom of expression, as they allow the surveillance of newsrooms, a climate of mistrust, impedes the collection of information, threatens the confidentiality of sources and, in the end, tries to misinform and manipulate the public, as well as discredit the credibility of the media ”(Source:https://www.europarl.europa.eu/doceo/document/TA-7-2013-0203_EN.html).