National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges
Abstract
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 lawcompliant.
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.
Origin : Publisher files allowed on an open archive