№78 National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges
№78 National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges

Author(s): Didier Bigo, Sergio Carrera, Nicholas Hernanz, Amandine Scherrer
Subject(s): Politics / Political Sciences, Politics, Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, Government/Political systems, Security and defense, EU-Legislation
Published by: CEPS Centre for European Policy Studies
Keywords: National Security; Secret evidence; national legal regimes; rule of law;
Summary/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.

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