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

V.O. Antonov [17] believes that the concept of national security is based on three fundamental categories: “interest”, “threats”, “protection”. The forms, methods, and means of ensuring national security largely depend on their content”. In other words, special services, using specific forms, methods, forces, and means in their activities to perform their objectives, must proceed from the constitutional definitions of forms, methods, and means of national security protection. Professor O.N. Yarmysh [18] emphasises that “issues of national security are always a priority in the system of functioning of any state. The importance of this function is growing in modern world, due to the necessity of responding to a range of destructive globalisation challenges”; “National security and defence legislation does not meet the threats to Ukraine's national security and requires development, revision, or clarification”. His proposal to amend the Constitution of Ukraine¹ with the section “National Security” is very reasonable.

Considering the above, national security and state security, as stated in Article 1 of the Law of Ukraine “On National Security”, differ in that the former covers “protection of state sovereignty, territorial integrity, democratic constitutional order, and other national interests of Ukraine from real and potential threats” 1, while state security covers “protection of state sovereignty, territorial integrity, and democratic constitutional order and other vital national interests from real and potential threats of non-military nature”. It is threats of a non-military nature, as noted by the Ukrainian legislator, which distinguish state security from national security. In this way, a direct reference is made to the fact that these threats arise from entities that encroach on state sovereignty, territorial integrity, and democratic constitutional order, and in actions, activities, or inaction which express signs of crimes, including: espionage, terrorism, intelligence and subversive or separatist and extremist activities, drug distribution, human trafficking. Admittedly, such threats should be countered only by state security bodies, which constitute special purpose state authorities with law enforcement functions.

With regard to national security, it is ensured by counteracting threats that constitute “phenomena, trends, and factors that render impossible or complicate or may render impossible or complicate the fulfilment of the national interests and preservation of the national values of Ukraine” (Clause 6)'Law of Ukraine No 2469-VIII “On National Security of Ukraine”. (2018, June). Law of Ukraine “On the Security Service of Ukraine” No 2229-XII. (1992, March).. These threats usually arise from foreign individuals or legal entities whose actions, activities, or inaction do not express direct signs of crime, but the nature of which is clearly unfriendly, mercantile, and sometimes provocative and hostile. Only intelligence agencies can counter these threats, because, firstly, the threats are external in nature, and, secondly, only intelligence has in its arsenal the full set of necessary forces and means to counter these threats. It is no coincidence that the legislator in Article 6 of the Law of Ukraine “On Law Enforcement Intelligence Operations” provided the intelligence agencies with the opportunity to perform law enforcement intelligence operations, apart from protecting their security, also to procure intelligence informationLaw of Ukraine “On Law Enforcement Intelligence Operations” No 2135-XII. (1992, February).

Conclusions

Thus, the uncertainty of the category of “national security”, as well as the vagueness of the place and role of state security and intelligence in its protection are factors of possible violation of constitutional rights and freedoms of person and citizen contrary to the ECHR provisions. The comparative analysis demonstrates different approaches of the legislators of the CoE member states to the implementation of the provisions of the ECHR in the national legislation on special services. Simple replication or transfer is clearly insufficient to really guarantee the protection of human rights and freedoms by the secret services. Constitutions or individual laws should set forth a detailed understanding of the category of national security, as well as related categories that are directly associated with its protection. It is impossible for the legislation on special services to be limited only to enumeration of principles of their activities. It is necessary to thoroughly outline each principle based on previous scientific development by a legal provision, to prevent vagueness and ambiguity, to consider the areas of national and state security protection on the part of law enforcement agencies, intelligence, and counterintelligence bodies. This is especially true of the principle of respect for and observance of human and civil rights and freedoms.

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