13 Jan 2015

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

Didier Bigo / Sergio Carrera / Nicholas Hernanz / Amandine Scherrer

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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.

The study 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 and is republished by CEPS with the kind permission of the Parliament.

Didier Bigo is Director of the Centre d’Etudes sur les Conflits, Liberté et Sécurité (CCLS) and Professor at Sciences-Po Paris and King’s College London. Sergio Carrera is Senior Research Fellow and Head of the Justice and Home Affairs Section, Centre for European Policy Studies, CEPS. Nicholas Hernanz is Researcher, Justice and Home Affairs Section, CEPS. Amandine Scherrer is European Studies Coordinator and Associate Researcher at CCLS.

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