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National Security and Secret Evidence in Legislation and Before the Courts

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National Security and Secret Evidence in Legislation and Before the Courts National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges Didier Bigo, Sergio Carrera, Nicholas Hernanz and Amandine Scherrer No. 78/ January 2015 Abstract 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. This document was originally commissioned by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) and published in December 2014. It is available for free downloading on the European Parliament’s website (www.europarl.europa.eu/RegData/etudes/STUD/2014/509991/IPOL_STU(2014)509 991_EN.pdf) and is republished by CEPS with the kind permission of the Parliament. CEPS Papers in Liberty and Security in Europe offer the views and critical reflections of CEPS researchers and external collaborators on key policy discussions surrounding the construction of the EU’s Area of Freedom, Security and Justice. The series encompasses policy-oriented and interdisciplinary academic studies and commentary about the internal and external implications of Justice and Home Affairs policies inside Europe and elsewhere throughout the world. Unless otherwise indicated, the views expressed are attributable only to the authors in a personal capacity and not to any institution with which they are associated. This publication may be reproduced or transmitted in any form for non-profit purposes only and on the condition that the source is fully acknowledged. ISBN 978-94-6138-440-9 Available for free downloading from the CEPS website (www.ceps.eu) ©CEPS, 2015 Contents Executive Summary ................................................................................................................................ i 1. Introduction.....................................................................................................................................1 1.1 The scope of the challenge .....................................................................................................1 1.2 Study methodology, terminology and structure .......................................................................6 1.2.1 Methodology .................................................................................................................6 1.2.2 Terminology and concepts .............................................................................................6 1.2.3 Structure ........................................................................................................................7 2. National regimes and practices in EU Member States on the use of intelligence information by courts .....................................................................................................................9 2.1 The United Kingdom and the use of closed material procedures (CMPs) .............................. 10 2.2 The use of secrecy in the Netherlands – the Act on Shielded Witnesses ................................ 13 2.3 Member States where the use of classified intelligence information as evidence is practised by national courts ..................................................................................................................... 14 2.4 Member States where there is no use of secret evidence in trials ........................................... 16 2.5 Classification and declassification of secret intelligence information .................................... 17 2.6 Justifications for the use of state secrets – what is national security? ..................................... 18 3. Assessing the reliance of the EU Member States’ justice systems on intelligence information in courts: The issue of scrutiny ................................................................................... 22 3.1 Assessing the quality of information used to convict an individual before the courts ............. 22 3.2 Digital surveillance and scrutiny in a post-Snowden era ....................................................... 24 3.3 Secrecy and government officials’ accountability ................................................................. 26 4. When judicial scrutiny goes transnational: European judiciary standards ....................................... 29 4.1 European Convention on Human Rights Standards ............................................................... 30 4.1.1 “In accordance with the law” test ................................................................................. 30 4.1.2 "Necessary in a democratic society" test....................................................................... 31 4.1.3 Effective remedies and effective judicial controls ......................................................... 33 4.2 EU Principles and Standards ................................................................................................ 35 4.2.1 Judicial scrutiny and effective judicial review in the EU legal system ........................... 35 4.2.2 Key EU case law in the use of intelligence information in EU antiterrorism policies..... 36 4.2.3 The use of intelligence information before the Luxembourg courts ............................... 39 5. Freedom of the press and protection of whistle-blowers ................................................................. 41 5.1 ‘State secrets’, the freedom of the press and the right to information ..................................... 41 5.2 Whistle-blowing: public awareness v. classified materials .................................................... 44 6. Conclusions and recommendations ................................................................................................ 47 6.1 General conclusions ............................................................................................................. 47 6.2 Policy recommendations ...................................................................................................... 49 References ............................................................................................................................................ 53 Annex 1. European and National Case-Law .......................................................................................... 57 Annex 2. Relevant Fundamental and Human Rights Provisions: the ECHR and the EU Charter ............ 60 Annex 3. Conceptual features of national security in selected EU Member States .................................. 61 Annex 4. Proceedings report of the 30 October Focus Groups ............................................................... 62 Annex 5. Country Fiches provided by the National Experts ................................................................... 65 Country Fiche: United Kingdom .................................................................................................... 66 Country Fiche: France ................................................................................................................... 70 Country Fiche: Germany ............................................................................................................... 81 Country Fiche: Italy ...................................................................................................................... 87 Country Fiche: Spain ..................................................................................................................... 95 Country Fiche: The Netherlands .................................................................................................. 104 Country Fiche: Sweden ............................................................................................................... 109 List of Abbreviations AIVD Algemene Inlichtingen- en Veiligheidsdienst (General Intelligence and Security Service, The Netherlands) AFSJ Area of Freedom, Security and Justice BKA Bundeskriminalamt (Federal Criminal Police Office, Germany) CCSDN Commission consultative sur le secret de la défense nationale (Consultative commission on national defence secrets, France) CIA Central Intelligence Agency (United States) CoE Council of Europe COPASIR Comitato Parlamentare per la Sicurezza della Repubblica (Parliamentary Committee for the Security of the Republic, Italy) CMPs Closed Material Procedures CNI Centro Nacional de Inteligencia (National Intelligence Centre, Spain) COREPER Permanent Representatives Committee (Council of the European Union configuration) CJEU Court of Justice of the European Union
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