Has the balancing of rights given way to a hierarchy of values?

Abstract

The article aims to discuss the apparent drawing apart of the flexible mechanisms of the
balancing of rights in favour of the more rigid mechanisms of the hierarchy of values, which
places security at the top of the theoretical pyramid.
It identifies three indicators: normative, jurisprudential and doctrinal and investigates
whether in these three areas a hierarchical idea of fundamental values, heavily skewed in
favour of public security, is gradually emerging. From this perspective, the article examines
some of the counter terrorism legislation introduced after the terrorist attacks in 2001 and
2005 with a view to verifying their impact on certain fundamental rights, above all with
regard to their “permanence” which appears to have taken the place of the original
temporary status. The same “test” is reserved for the position of the courts, with specific
reference to the judgments of supreme and constitutional courts called upon to rule on
violations of rights caused by the application of counter terrorism measures. The doctrinal
indicator is provided by the debate concerning the use of torture, merely by way of example
but in a manner relevant for the issue under investigation.