European convention on human rights as the minimum international standard for national legislation on special services: a comparative aspect

The end of the 20th century is described by the rapid adoption of legislation on special services by member states of the Council of Europe. In these adopted acts, the legal framework for the activities of intelligence and counterintelligence bodies, among other laws, is the constitution. The relevance of the study lies in the necessity of investigating the regulations governing the activities of intelligence and counterintelligence bodies. The study examines the specific features of the implementation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 in the legislation on special services on the example of some member states of the Council of Europe. It is established that the current legislative acts differ in form, structure, and content, as well as different approaches to determining the legal requirements for the observance of human rights and freedoms during the implementation of intelligence and counterintelligence activities. The constitutional provisions of different states are explored, which largely reproduce the provisions of the 1950 Convention. It is proved that the relevant constitutional provisions on the grounds for restricting human rights and freedoms are contained in the legislation on special services, but with significant differences. It is justified that intelligence legislation must include references to international human rights instruments. The study gives examples from the legislation of some member states of the Council of Europe on different approaches to defining the principles of intelligence services. Furthermore, the paper analyses the tendencies of spreading the convergence of the principles underlying the activities of intelligence services. It is proposed, considering the experience of Ukrainian legislators, not only to include the principles of legality and respect for human rights and freedoms in the legislation on special services, but also to disclose their content in detail, factoring in the specific features of special services. Different doctrinal approaches to the categories of “national security” and “state security” are considered, based on the generalisation of which the individual vision of their content is proposed. It is concluded that not all member states of the Council of Europe properly implement the provisions of the 1950 Convention into national intelligence legislation. The above mainstreams the borrowing of the best practices and experiences of Member States which have not ignored this issue

Council of Europe, Fundamental Freedoms, special services, national security, national security