National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges

10-12-2014

At the request of the LIBE committee, this study provides a comparative analysis of the national legal regimes and practices governing the use of intelligence information as evidence in the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden. It explores notably how national security can be invoked to determine the classification of information and evidence as 'state secrets' in court proceedings and whether such laws and practices are fundamental rights- and rule of law-compliant. The study finds that, in the majority of Member States under investigation, the judiciary is significantly hindered in effectively adjudicating justice and guaranteeing the rights of the defence in ‘national security’ cases. The research also illustrates that the very term ‘national security’ is nebulously defined across the Member States analysed, with no national definition meeting legal certainty and “in accordance with the law” standards and a clear risk that the executive and secret services may act arbitrarily. The study argues that national and transnational intelligence community practices and cooperation need to be subject to more independent and effective judicial accountability and be brought into line with EU 'rule of law' standards.

At the request of the LIBE committee, this study provides a comparative analysis of the national legal regimes and practices governing the use of intelligence information as evidence in the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden. It explores notably how national security can be invoked to determine the classification of information and evidence as 'state secrets' in court proceedings and whether such laws and practices are fundamental rights- and rule of law-compliant. The study finds that, in the majority of Member States under investigation, the judiciary is significantly hindered in effectively adjudicating justice and guaranteeing the rights of the defence in ‘national security’ cases. The research also illustrates that the very term ‘national security’ is nebulously defined across the Member States analysed, with no national definition meeting legal certainty and “in accordance with the law” standards and a clear risk that the executive and secret services may act arbitrarily. The study argues that national and transnational intelligence community practices and cooperation need to be subject to more independent and effective judicial accountability and be brought into line with EU 'rule of law' standards.

Autor externo

Didier Bigo (Centre d’Etudes sur les Conflits, Liberté et Sécurité - CCLS ; Sciences-Po Paris ; King’s College London), Sergio Carrera (Centre for European Policy Studies, CEPS), Nicholas Hernanz (CEPS) and Amandine Scherrer (CCLS) ; Contributions in the Country Fiches by: Mar Jimeno Bulnes (University of Burgos, Spain), Emmy Eklundh (University of Manchester, United Kingdom), Roseline Letteron (Université Paris-Sorbonne, France), Nikolaus Marsch (University of Freiburg in Breisgau, Germany), Daniel Squires (Matrix Chambers, London, United Kingdom), Arianna Vedaschi (Bocconi University, Milan, Italy), Gabriele Marino (University of Exeter, United Kingdom) and Anja Wiesbrock (University of Oslo, Norway)