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\nanalysis of the national legal regimes and practices governing the use of\nintelligence information as evidence in the United Kingdom, France,\nGermany, Spain, Italy, the Netherlands and Sweden. It explores notably\nhow national security can be invoked to determine the classification of\ninformation and evidence as 'state secrets' in court proceedings and\nwhether such laws and practices are fundamental rights- and rule of lawcompliant.\nThe study finds that, in the majority of Member States under\ninvestigation, the judiciary is significantly hindered in effectively\nadjudicating justice and guaranteeing the rights of the defence in\n‘national security’ cases. The research also illustrates that the very term\n‘national security’ is nebulously defined across the Member States\nanalysed, with no national definition meeting legal certainty and “in\naccordance with the law” standards and a clear risk that the executive\nand secret services may act arbitrarily. The study argues that national\nand transnational intelligence community practices and cooperation need\nto be subject to more independent and effective judicial accountability\nand be brought into line with EU 'rule of law' standards.

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