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 comparativeanalysis of the national legal regimes and practices governing the use ofintelligence information as evidence in the United Kingdom, France,Germany, Spain, Italy, the Netherlands and Sweden. It explores notablyhow national security can be invoked to determine the classification ofinformation and evidence as 'state secrets' in court proceedings andwhether such laws and practices are fundamental rights- and rule of lawcompliant.The study finds that, in the majority of Member States underinvestigation, the judiciary is significantly hindered in effectivelyadjudicating 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 Statesanalysed, with no national definition meeting legal certainty and "inaccordance with the law" standards and a clear risk that the executiveand secret services may act arbitrarily. The study argues that nationaland transnational intelligence community practices and cooperation needto be subject to more independent and effective judicial accountabilityand be brought into line with EU 'rule of law' standards.