An (im)possible balance: guaranteeing human rights and national security. Op-Ed by Pavel Cazacu

Human rights are imperative premises of a truthful democracy. However, most fundamental rights and freedoms are not absolute, so under certain conditions they may be subject to limitations by the state authorities. Moreover, some contexts lead to the emergence of a positive obligation of the authorities to intervene promptly and decisively if certain limits are exceeded. On the other hand, in order not to admit the occurrence of abuses, the authorities must necessarily take into account human rights standards, both from the perspective of legality and from the perspective of the proportionality of the restrictions applied in concrete situations. In other words, the authorities have the not easy task of identifying the perfect balance between two values equally important for the democracy of a state: human rights and national security.

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With Russia’s brutal invasion of Ukraine and amounting security threats for the Republic of Moldova, the national authorities have strengthened their efforts and initiated a series of measures aimed at protecting national security. Some of these measures refer to the designation of undesirable persons or the prohibition of entry into the country for foreign citizens.

According to the information presented by the General Inspectorate for Migration, between February 2022 and January 2024, more than 98 persons were declared undesirable on the grounds that “they have carried out, are carrying out or there are solid indications that they intend to carry out activities likely to endanger national security or public order”.[1]

On the other hand, decisions to refuse entry into Moldova were applied. Periodically, the Border Police published a press release or offered a summary comment about the fact that the persons “did not meet the conditions for authorizing the crossing of the state border”.[2] In other cases, the reasons for refusal were not even communicated.[3] Among the most well-known people who were not allowed access to the country in the last 2 years were: Filip Kirkorov (2022); Goran Bregović (2023); Irakli (year 2024).

Among the individual cases mentioned, the situation regarding Filip Kirkorov was one of the most publicized in the national press, both in 2022 when he was denied entry into Moldova, and recently, with the publication of the decision of the European Court of Human Rights (ECtHR), in the case against Lithuania.

We recall that, on April 18, 2024, the European Court of Human Rights declared inadmissible Filip Kirkorov’s complaint against Lithuania, challenging the decision of the Lithuanian authorities not to allow him access to the country in 2021. He argued that the restrictive measure was adopted as „means of censoring his political opinions”. In turn, the Lithuanian authorities justified their decision by the fact that Filip Kirkorov was an instrument of “soft power” of the Russian Federation, and his physical presence in Lithuania was indispensable to spread disinformation and propaganda of the Russian Federation. A fact that was not denied by the applicant.

Analysing whether this ban was justified and necessary in a democratic society, the ECtHR considered that the arguments offered by the Lithuanian national authorities were well-founded, noting the following important aspects regarding Filip Kirkorov’s conduct prior to the application of the ban in 2021:

• publicly supported the occupation policy of the Russian Federation;
• justified the aggressive actions of the Russian Federation;
• publicly expressed support for the illegal annexation of Crimea;
• shared the message that the return of the Crimean Peninsula to Russia was a “glorious and victorious” event;
• he was “Vladimir Putin’s representative on stage”, constantly and publicly supporting both the President of the Russian Federation and his policies.[4]

Regarding the ban on entry into Moldova on July 28, 2022, the Border Police communicated at that stage quite briefly, mentioning about “the non-fulfilment of the conditions for authorizing the crossing of the state border.”[5] More details were not disclosed.

At a distance of 2 years, on May 30, 2024, the action filed by Filip Kirkorov against the Border Police, challenging the ban on entry into Moldova, was admitted by the Chisinau Court.[6] However, because the concrete reasons behind the refusal to enter the Republic of Moldova have not been communicated, because the reasoned decision of the court has not yet been published, but also because it is not a final one, it is premature, and perhaps even wrong, to provide qualifications of these decisions.

However, one should admit that the Court’s decision of May 30, 2024, on the admission of Filip Kirkorov’s action is a surprising one. Especially as a result of the recent decision of the ECtHR of April 18, 2024, but also of the security context of the last 2 years in Moldova, which we do not consider very different from that of Lithuania:

• in March 2022, the Parliamentary Assembly of the Council of Europe recognized the Transnistrian region as a Russian occupation zone;[7]
• according to the National Security Strategy of the Republic of Moldova, the hybrid operations carried out by the Russian Federation against the Republic of Moldova, in the political, economic, informational areas, etc., represent one of the most important security threats;[8]
• with Russia’s invasion of Ukraine, the Republic of Moldova expressed its solidarity with the Ukrainian people, and condemned in the harshest terms the Russian military aggression;
• the decisions to refuse to enter the country for foreigners, including Filip Kirkorov were adopted after 24.02.2022, the moment of the large-scale start of the Russian invasion of Ukraine.

Thus, it is not excluded that the admission of Filip Kirkorov’s action against the Border Police is also determined by a weak reasoning of the decision to refuse entry into the country. However, this aspect will be clarified once the reasoned decision is published.

The security context of the last two years in Moldova is one that generates a series of challenges regarding the respect of fundamental human rights and freedoms, and implicitly the measures to limit them, which need to be managed in a diligent manner and in accordance with national and international legislation. Moreover, the national authorities have a complicated task of identifying the most effective instruments for the protection of national security, but also that do not allow abuses or unjustified interference in the exercise of fundamental human rights (e.g. freedom of expression, movement, assembly, etc.).

The mere existence of a security context is not enough to make decisions to limit human rights. Both administrative institutions and courts must argue their decisions judiciously in each particular case.

The ECtHR decision in the case of Kirkorov vs Lithuania, including as a result of the close security context, is a relevant and valuable precedent for the authorities of the Republic of Moldova in establishing benchmarks in the process of identifying a proportionate balance between the interests of the state and the respect for human rights. Especially as a result of the increasingly hostile attempts of the Russian Federation to influence the economic, political and informational situation in Moldova.

However, the authorities must exercise caution, as no ECtHR judgment or decision should be applied automatically, without a judicious adaptation of the factual circumstances in another close or similar case.

National security, especially in these uncertain times, must be protected, including through prompt and decisive reactions. At the same time, the authorities’ reaction must be legal, proportionate and properly argued. The authorities have the challenging task of ensuring a perfect balance between the respect for human rights and preserving the national security. The appearance of any imbalance in this ratio may affect the state’s ability to protect its democracy.

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Pavel Cazacu is a lawyer and member of the Group of Experts in the field of Justice within the Institute for European Policies and Reforms (IPRE).

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This op-ed is developed within the project “Ensuring the integrity, efficiency and independence of the justice system in Moldova – #JustițiePentruMoldova”, funded by the European Union and co-financed by the Soros Foundation Moldova. The content of the material belongs to the author and does not necessarily reflect the views of the European Union and the Soros Foundation Moldova. The publication of the op-ed by Zugo.md is done within the #Justice4Moldova media partnership.

[1] https://newsmaker.md/ro/liderul-aur-george-simion-interzis-in-republica-moldova-pentru-inca-5-ani/

[2] Decisions on refusal of entry into the Republic of Moldova in respect of foreign citizens, https://deschide.md/ro/stiri/social/111404/UPDATE–IGPF-despre-interzicerea-accesului-lui-Filip-Kirkorov-%C3%AEn-RMoldova.htm

[3] 29 persons declared inadmissible in the Republic of Moldova in the last 24 hours, https://www.border.gov.md/29-persoane-declarate-inadmisibile-republica-moldova-ultimile-24-ore

[4] Kirkorov vs Lithuania, No. 12174/22 of April 18, 2024, https://hudoc.echr.coe.int/eng?i=001-233417

[5] https://deschide.md/ro/stiri/social/111404/UPDATE–IGPF-despre-interzicerea-accesului-lui-Filip-Kirkorov-%C3%AEn-RMoldova.htm

[6] https://jc.instante.justice.md/ro/pigd_integration/pdf/bd11de3a-7450-424d-9bf9-4b42b3e5d97c

[7] https://www.ipn.md/en/pace-recognizes-occupation-of-moldovas-transnistrian-region-by-russia-7965_1088507.html

[8] Parliament Decision No. 391 of 15.12.2023 on the approval of the national security of the Republic of Moldova.  https://www.legis.md/cautare/getResults?doc_id=141253&lang=ro