In the post 9/11 context of global terrorism and global counter-terrorism, the question of secrecy, usually grounded in national security-related concerns, has become one of the most interesting legal issues.In the wake of an increasingly transnational terrorism phenomenon, the balancing of security, secrecy and fundamental procedural rights represents an increasing challenge for both the Executive and the judicial authorities.
THE TREATMENT OF CLASSIFIED INFORMATION BEFORE THE EUROPEAN COURT OF JUSTICE
(Dissertation of Isabella Oldani, Università di Trento, 2016, download .pdf file)
INTRODUCTION
"There is reason to think that as a general matter in times of crisis, we will overestimate our security needs and discount the value of liberty".[1]
Introduction
In the post 9/11 context of global terrorism and global counter-terrorism, the question of secrecy, usually grounded in national security-related concerns, has become one of the most interesting legal issues.[2]Today, counterterrorism is characterized by an extensive and ever-increasing reliance on classified intelligence information in order to grant an effective response to an increasingly sophisticated form of transnational terrorism.[3]
While it may be argued that an effective counterterrorism response may require a certain degree of secrecy,[4]the use of classified information as grounds for imposing severe legal consequences on individuals or entities, with the preservation of its inherent secrecy, has raised numerous constitutional concerns. When targets started to challenge these measures in courts, the thorny issue of balancing (inter)national security concerns and due process rights inevitably surfaced.[5]
The increased involvement of intelligence services in the policing of terrorism prevention entails that in judicial proceedings, most governments employ confidential information taken from intelligence agencies without fully disclosing this information to the persons concerned.[6]This has paved the way for the admission of secret information as evidence in court,[7]which while protecting the confidentiality of intelligence information from security-threatening disclosure, notably reduces the defense rights of the person concerned.[8]
Secret evidence is deemed to be inherently unfair, unreliable, undemocratic and liable to undermine the same value it strives to protect- national security. Secrecy claims have sparked tension within the European Union framework, between the highest levels of the Executive and judicial authorities, culminating in trials at European Union Courts and inspiring the development of a set of supranational legal standards.[9]
A comparative analysis of the methods deployed by different Member States in dealing with classified material in judicial proceedings will then be necessary in order to evaluate whether their regimes are compliant with the standards set out at the EU level. Specific focus shall be placed on two opposite regimes for dealing with confidential information in courts. The UK system, where a specific mechanism has been devised, enabling the formal use of secret information as evidence in civil courts, and the Italian system, where neither legislation nor judicial practices dealing with national security cases recognize the probative value of secret information.[10]From this comparative analysis, it will appear on the one hand that in Italy, where the only court with access to documents covered by the State secret privilege is the Constitutional Court, the balance scale too often tilts towards the interests of public security, without the establishment of proper counterbalancing mechanisms to prevent abuses of secrecy by the Executive branch. On the other hand, as it currently stands, the United Kingdom system, where sensitive intelligence material is systematically discussed in closed hearings, is rife with shortcomings when safeguards aimed at avoiding security - threatening leaks of information are examined in the light of the most basic standards of procedural fairness.
Thus, it will be interesting to analyze how two regimes (the UK and Italy), which have adopted opposite approaches to the treatment of confidential information in courts, sit uneasily with the rule of law standards elaborated at the EU level. Nonetheless, it should be possible to build up a fully developed procedural system for handling secret evidence whilst safeguarding procedural fairness, through the combination of the emerging EU security jurisprudence and some positive aspects of the UK national experience.
(download .pdf file of Dissertation of Isabella Oldani, Università di Trento, 2016; 1.2 Mb)
[1]David Cole, "Enemy Aliens", (2002) 54 Stan.L.Rev., p.955
[2]Martin Scheinin, "Foreword" in Secrecy, National Security and the Vindication of Constitutional Law, (Cheltenham; Northampton: Edward Elgar Publishing: 2013), p.ix
[3]See Scheinin, supra note 2, p.ix
[4]See Scheinin, supra note 2, p.ix
[5]Gavin Sullivan, "Secret Justice inside the EU courts", (2014) available at http://www.aljazeera.com/INDEPTH/OPINION/2014/04/SECRET-JUSTICE-INSIDE-EU-COURT-2014417143255779945.HTML
[6]Craig Forcese and Lorne Waldman, ?Seeking Justice in an Unfair Process. Lessons from Canada, the United Kingdom, and New Zealand on the Use of ?Special Advocates? in National Security Proceedings?, August 2007, University of Ottawa, Faculty of Law (Common Law Section), p.5
[7]The so-called ?secret evidence?
[8]Policy Department, ?National security and secret evidence in legislation and before the courts: exploring the challenges?, Study for the LIBE Committee, (2014), p.12
[9]See Policy Department, supra note 8, p.58
[10]See Policy Department, supra note 8, p.20
TABLE OF CONTENTS
INTRODUCTION.. 1
Chapter I: COUNTERTERRORISM MEASURES: NATIONAL SECURITY V. PROCEDURAL FAIRNESS 3
1.The growth of administrative counterterrorism measures. 3
1.1 The blurring of the distinction between administrative and criminal sanctions 4
2.The importance of intelligence information in fighting terrorism and the need for secrecy 5
2.1. National security as the main rationale for classifying information. 5
2.2.The inherent secrecy of intelligence information. 7
3. The reliance on intelligence information as grounds for restrictive measures 8
3.1.The blurring of the distinction between intelligence and evidence. 9
3.2. Secret evidence is unreliable, liable to weaken national security, undemocratic, unnecessary and inherently unfair 12
4. Overview of the treatment of secret evidence at the international and EU level 15
4.1.International good practices. 15
4.2.European Union secrecy regulations. 19
Chapter II: EUROPEAN LEGAL STANDARDS.. 25
1.Secret evidence under the Charter of Fundamental Rights of the European Union and the European Convention of Human Rights: due process rights and their exceptions. 25
2.The European Court of Human Rights? case-law.. 29
2.1.Restrictions of the rights of the defense and the need for counterbalancing procedures 29
2.2. The system of special advocates as a possible counterbalancing mechanism: the scope of ?A-type? disclosure and its difficult application. 31
2.3.Immigration cases and the need for ?some forms of adversarial proceedings? 35
3.General Court and European Court of Justice?s case-law.. 36
3.1.Deportation proceedings: the ZZ case and the obligation to disclose the essence of the reasons for a decision refusing entry 37
3.2.Sanctions and asset-freezing measures: the Kadi saga and OMPI/PMOI 44
3.2.1.UN-based sanctions: the Kadi saga. 44
3.2.2. EU autonomous sanctions: the OMPI/PMOI case. 57
4.New Procedural Rules of the General Court. 64
4.1. Filling the legislative gap in the ?treatment of information or material pertaining to the security of the Union or of its Member States or to the conduct of their international relations? 64
4.2. The shortcomings of the New Procedural Rules. 67
Chapter III: COMPARATIVE ANALYSIS OF THE NATIONAL LEGAL SYSTEMS GOVERNING THE USE - OR MISUSE - OF CLASSIFIED INFORMATION IN COURTS.. 71
1. The UK system of special advocates. 71
1.1.The system of special advocates as an alternative to Public Interest Immunity 72
1.2. Closed Material Procedures before the Special Immigration Appeals Commission 73
1.3.The use of special advocates: from immigration cases (1997) to its expansion in all areas of civil law (2013) 78
1.3.1.The rise of questions of legality. 80
1.3.2. The Justice and Security Act: its flawed premises and its flawed provisions 83
1.4. Closed Material Procedures and the need for a minimum level of disclosure 89
1.5.Restrictions on special advocates? ability to preserve the adversary nature of Closed Material Procedures 98
2.The Italian State secret privilege. 108
2.1. The State secret privilege from its origins to Law 124/2007. 108
2.2.The State secret privilege in criminal proceedings: the Abu Omar case and the self-restraint of the Constitutional Court 114
2.3.The State secret privilege in administrative proceedings: expulsion cases. 122
2.3.1.The right to access to administrative documents under Law 241/1990. 122
2.3.2. State secrets as grounds for expulsion decisions. 125
Chapter IV:THE WAY FORWARD: HOW THE NEED FOR SECRECY SHOULD BE MANAGED BY EU COURTS 135
CONCLUSION.. 151
BIBLIOGRAPHY. 157
CONCLUSION
?He who decides something without hearing the other side is not just, even if he makes a just decision?.[1]
In the wake of an increasingly transnational terrorism phenomenon, the balancing of security, secrecy and fundamental procedural rights represents an increasing challenge for both the Executive and the judicial authorities.
In a context where the counterterrorism policy pursued both at a national, supranational and international level is mainly based on the work of intelligence services, the use of secret evidence in courts may be unavoidable in order to respond to legitimate security concerns which emerge with the disclosure of information in open courts. However, while it is a well-rooted principle in the European constitutional framework that in non-criminal trials, overriding concerns relating to the security of the European Union or of its Member States or the conduct of their international relations, may justify restrictions on full disclosure, the increasing reliance on intelligence information as the basis for restrictive measures has inevitably raised serious constitutional concerns when secrecy claims are invoked to obstruct investigations and judicial accountability on Government action.[2]
In a context where fundamental constitutional rights are subject to a systematic threat of illegitimate compressions in the name of security, the EU courts have opted for a relatively strong standard of protection for the rights of the defense and of judicial redress, enshrined in the EU Charter and in the European Convention of Human Rights.[3]On the basis of emergent EU security jurisprudence, a fully developed procedural system can be devised at the supranational judicial level in order to remedy the issues of fairness, reliability and accountability raised by non ? disclosure. In the words of the European Court of Justice, there are two conditions which should accompany any limitation on full and precise disclosure on the grounds for restrictive measures.
Firstly, the alleged need for secrecy must be proved by the claiming authority and then be subjected to a meaningful and independent judicial scrutiny by the Court which will thus require access to all the evidence and grounds underpinning the contested decision.[4]While the preclusion of communicating some grounds is not as such a violation of the European Convention on Human Rights and of the Charter of Fundamental Rights of the European Union, non--disclosure does not imply that confidential information is immune from judicial review. Therefore effective judicial scrutiny is essential in preventing possible abuses of secrecy perpetrated by the Executive branch: ?in delimiting the legitimate parameters of national security claims and making sure they are not used as a cover-up for unlawful practices?, independent judicial oversight is ?an absolute requirement to restrain the discretionary powers given to the Executive and to the alliance of intelligence services at the European/transnational level?.[5]Given the increasingly transnational nature of terrorism,[6]the supranational courts are well-positioned to promote and consolidate an effective implementation of fundamental supranational principles.[7]Supranational courts should thus refrain from taking the same deferential approach too often adopted by domestic courts in relation to state secret claims and uphold the rule of law principles with increasing vigilance. The trust-based relationship between the judiciary on the one hand and the Executives and the intelligence communities on the other is in fact clearly incompatible with the necessary independence of the judiciary as one of the strongest safeguards of the liberties of a democratic society:[8]?the ability to effectively vindicate one?s rights through the justice system is a vital element in a modern democracy. It ensures that justice, in its broadest sense, can be done, and it provides an essential check on executive action?.[9]
If then the court is sufficiently satisfied that State security reasons stand in the way of a full and precise disclosure of those grounds, the competent court, and this is the second condition, must dispose of techniques and procedures which strike the appropriate balance between, the Executive?s legitimate interest in preserving the confidentiality of the nature and sources of information relied on for the contested decision, and the requirements of procedural rights.[10]To that end, ?in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defense?, in any event, the person concerned must be provided at least with the essence of the reasons underpinning the restrictive decision.[11]Beyond the gist requirement however, no further guidance is given by the Court on what sort of accommodating techniques should be adopted in order to reconcile the demands of procedural rights with the need to safeguard public security.[12]
Therefore a new procedural system should be urgently devised, both at the levels of the General Court and the European Court of Justice, in order to protect the person concerned from unlawful non-disclosure and at the same time reassure EU and national authorities to produce intelligence material to the European Courts. In a context where the application of only the PII/Article 67 procedure leaves the court ill-equipped to deal with the hard choice cases raised by the use of secret evidence and where the new procedural rules of the General Court do not provide a sufficient measure of procedural fairness, a UK-style closed material procedure seems to be the best way forward to protect the confidentiality of the information at stake, whilst allowing special advocates to act on behalf of the defendant.[13]
As a general principle however, a hearing without full knowledge will never entirely meet the principles of fundamental justice, especially when the proceedings may lead to heavy interferences with life and liberty. Departure from conventional full fair hearing requirements in closed proceedings should be limited to those circumscribed areas where traditionally there has been a genuine need for resorting to intelligence material[14]and only after having made sure that the sensitive information at stake cannot be acquired by means of non-secret methods.[15]Moreover, even in those limited areas where closed material procedures are applicable, said procedures should be used strictly as a measure of last resort, after having accurately ascertained that less rights-impairing alternatives, such as the PII/Article 67 process, cannot be deployed without making the case untriable against the interests of justice.[16]
However, in the light of the several shortcomings of the current UK system, the introduction of the special advocate system in Luxembourg would require fundamental changes as well as substantial adaptations of the procedure to the EU framework. Lifting constraints on communication between the person concerned and the special advocate after the latter has been served with the closed files[17]and providing the defendant with enough information to enable him/her to give instructions to the special advocates about how the allegations adduced against him/her might be rebutted,[18]represent the two major changes capable of increasing the overall fairness of the UK-style closed material procedure. Indeed on the one hand foreign experiences prove how, with appropriate guidance, it should be possible to loosen the current bars on communication between the special advocate and the person concerned whilst securing material regarded as confidential by the Executive.[19]On the other hand, the insistence of both the European Court of Justice and the European Court of Human Rights on the necessity to provide the person concerned with at least the essence of the grounds against him/her, shows how this knowledge represents a crucial ?aspect of the minimum adversary nature of the proceedings?[20]which should always go hand-in-hand with complete and independent judicial oversight.
Although it is impossible to dispel all doubts of unfairness through the implementation of a UK-style special advocate mechanism, the adoption of this system may go some way in preserving the tradition of open and natural justice on which any democracy is built, by protecting the excluded parties from significant injustice.[21]This however should not obscure the fact that this system is a mere attempt at accommodating national security requirements within a framework of procedural fairness and as such, should be confined to those exceptional cases where there are genuine and compelling national security concerns.[22]
Overall, what emerges from European jurisprudence is that while States have a positive obligation to protect the life and liberty of the people under their jurisdiction, there are some fundamental ?human rights standards which must be secured to everyone?. ?Everyone means everyone?. ?States are not allowed to combat terrorism at all costs? but they should do all what can reasonably be expected from them to protect the lives of their citizens without however resorting to methods capable of undermining the same values they strive to protect:[23]?one does not defend a society and its principle by undermining or dismantling them?.[24]In this context, the supranational courts have proven their awareness of the ?immense difficulties faced by States in modern times in protecting their communities from terrorist violence?,[25]recognizing that restrictions on a fully adversarial procedure can be admitted. On the other hand, they have also countered attempts of several States to lower their standards of human rights protection[26]by laying out an irreducible minimum which shall always be provided to individuals concerned, however threatening their conduct might be.
When the use of secret evidence seems inevitable, a combination of complete and independent judicial review, gist requirement and assistance of special advocates may represent an effective procedural path to ensure that anyone who is affected by restrictive measures adopted in the name of national or international security, is granted sufficient protection against arbitrariness.
[1]Seneca, Medea (I A.D.)
[2]See Policy Department, supra note 8, p.58
[3]See Policy Department, supra note 8, p.58
[4]ZZ at paras.58 ? 62
[5]See Policy Department, supra note 8, pp.70-71
[6]See Garlicki, supra note 34, p.323: ?The general process of globalization led not only to globalization of terrorist activity (we are thus far away from the ?old good times? when terrorism remained mostly confined to particular countries), but also to the need for a global response. Consequentially, the ?war on terror? became, to a considerable extent, detached from the national constitutional context?.
[7]See Policy Department, supra note 8, p. 9
[8]See Green Paper, supra note 38, p.1
[9]See Green Paper, supra note 38, p.1
[10]ZZ at para.64
[11]Ibid. para.65
[12]See de Boer, supra note 81, p.1250
[13]See Williams, supra note 563, p.24
[14]See Williams, supra note 563, p.28
[15]See Policy Department, supra note 8, p.71
[16]See Williams, supra note 563, p.28
[17]See Williams, supra note 563, p.28
[18]A at para.220: ?The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate?.
[19]See Nineteenth report, supra note 603, para.205
[20]See de Boer, supra note 81, p.1261
[21]See Evidence of Mr Nicol to the Joint Committee on Human Rights, Nineteenth report supra note 603, Q 38: ?I would add something on the role of Special Advocates. I see it as mitigating the unfairness which is inherent in a system where the appellant, one party to the proceedings, does not know all the material that they are supposed to be meeting or answering. That is inherent. It is irreducible in the sense that, as long as the appellant does not know it, there is always going to be the fertile possibility that explanations or responses that could be given are not, because that material has not been disclosed to the only person who could provide them. The system of Special Advocates can never overcome that irreducible element of unfairness but, having accepted that, I think that the functions that we try to perform can at least mitigate it and is better than not having a system where there is a partisan representative. We are not like friends of the court, amici curiae; we are partisan. We partisan on the part of the person whose voice is otherwise not going to be heard in the proceedings and in relation to material which is otherwise going to be put before the Commission with nobody saying anything contrary to the Government?s view?. Emphasis added.; See also MH and others v Secretary of State for the Home Department [2008] EWHC 2525 (Admin) at para.36: Despite all the limitations on the ability of [special advocates] to achieve substantive justice, the experience of those (?) who have seen the [special advocate] system in action demonstrates that that it provides a benefit certainly favor in the field of submissions about disclosure. What is disclosed after [a special advocate?s] intervention is almost always considerably more than the executive proposed to give before it. In nearly ten years experience as a special advocate, I cannot recall an occasion when absolutely nothing was added to the [defendant's] state of knowledge after the disclosure process was complete. I am aware that that experience is not unique?.
[22]See Ip, supra note 247, p.741
[23]ECtHR Saadi v Italy, Appl. N. 37201/06, Judgment of 28 February 2008, concurring opinion of Judge Myjer, joined by Judge Zagrebelsky: ?Indeed, the Convention (and protocols thereto) contain legal human rights standards which must be secured to everyone within the jurisdiction of the High Contracting parties (Article 1). Everyone means everyone: not just terrorists and the like. The States also have a positive obligation to protect the life of their citizens. They should also have a positive obligation to protect the life of their citizens. They should so all that could be reasonably expected from them to avoid a real and immediate risk to life
[24]Mike Dodd, ?Secret trials are wrong?, (2014) 25(3) B.J.R., p.9
[25]Chahal at para.79
[26]Barbara Concolino, ?Divieto di tortura e sicurezza nazionale: il no della Corte europea dei diritti dell?uomo al bilanciamento nei casi di espulsione di presunti terroristi?, (2008) 3 Dir.pubbl.comp.eur., p.1109
(download .pdf file of Dissertation of Isabella Oldani, Università di Trento, 2016)
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Jackson, J. (2013) ?Justice, Security and the Right to a Fair Trial: Is the Use of Secret Evidence Ever Fair??, Public Law, pp.720-736
Jenks, C, and Jensen, E. T. (2010) ?All Human Rights are Equal, but some are more Equal than Others: the Extraordinary Rendition of a Terror Suspect in Italy, the NATO SOFA, and Human Rights?, 1 Harvard National Security Journal, pp.171 ? 202
Jenkins, D. (2011) ?There and Back Again: the Strange Journey of Special Advocates and Comparative Law Methodology?, 42 Columbia Human Rights Law Review, pp.279 -355
Joint Committee on Human Rights, The Justice and Security Green Paper Written Evidence, Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice, January 1999, available at: http://www.parliament.uk/documents/joint-committees/human-rights/Written%20Evidence%20Volume%20v6.pdf
Joint Committee on Human Rights, ?Counter-terrorism policy and Human Rights: 28 days, intercept and post-charge questioning?, Nineteenth report of Session 2006-07
Joint Committee on Human Rights, ?Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010?, Ninth Report of Session 2009-10
Joint Committee on Human Rights, ?The Justice and Security Green Paper?, Twenty ? fourth Report of Session 2010-12
JUSTICE, « Secret Evidence », June 2009, available at: http://www.statewatch.org/news/2009/jun/uk-justice-secret-evidence-report.pdf
Justice and Security Green Paper, response to Consultation from Special Advocates, 16 December 2011
Kavanagh, A. (2010) ?Special Advocates, Control Orders and the Right to a Fair Trial?, 73 (5) The Modern Law Review, pp.824 ? 857
Knights,S. ?Case Comment : ZZ v Secretary of State for the Home Department (C-300/11)?, 20 June 2013, available at http://eutopialaw.com/2013/06/20/CASE-COMMENT-ZZ-V-SECRETARY-OF-STATE-FOR-THE-HOME-DEPARTMENT-C-30011/
Lang, A. and Nascimbene, B. (2007) ?L?attuazione in Italia della direttiva 2004/38/CE sulla libera circolazione dei cittadini dell?Unione Europea?, 2 Diritto Immigrazione e Cittadinanza, pp.43-63
Lester, M.(2013) ?UK Supreme Court quashes Order against Bank Mellat? http://europeansanctions.com/2013/06/20/uk-supreme-court-quashes-order-against-bank-mellat/
Lester, M. (2013) ?First ever Closed Hearing in the UK Supreme Court ? Bank Mellat?s Case? (2013) http://europeansanctions.com/2013/03/21/first-ever-closed-hearing-in-the-uk-supreme-court-bank-mellats-case/
Lester, M. (2014) ?Draft European Court Rules Propose Secret Hearings? (2014) available at:http://europeansanctions.com/2014/04/06/draft-european-court-rules-for-secret-hearings/
Lester, M. (2015) ?New EU Court Rules to be Adopted without UK Approval?, available at http://europeansanctions.com/2015/01/23/new-eu-court-rules-to-be-adopted-without-uk-approval/
Li, H.?Closed Material Procedure in Civil Proceedings?, (2013) Laws 546 Research Paper, Victoria University of Wellington, Faculty of Law
Lord Brown, Final debate on the Justice and Security Act (2013), available at http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/130326-0002.htm#13032671000268
Marrone, A. ?Il nomos del Segreto di Stato? in Nuovi profili del segreto di Stato e dell?Attività di Intelligence, edited by Giulio Illuminati (Torino: Giappichelli, 2010), pp.1-52
McNamara L. and Lock, D.?Closed Material Procedures under the Justice and Security Act 2013. A Review of the First Report by the Secretary of State?, August 2014, Bingham Centre for the Rule of Law
Messineo, F. (2009) ? ?Extraordinary Renditions? and State Obligations to Criminalize and Prosecute Torture in the Light of the Abu Omar case in Italy?, 7 Journal of International Criminal Justice, pp.1023-1044
Milieu Ltd. and Europa Institute, (2008) ?Conformity Study for Italy. Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States?
Murphy, C. (2012) ?Secret Evidence in EU Security Law: Special Advocates before the Court of Justice?, (2012) Centre of European Law, King?s College London, available at https://www.kcl.ac.uk/law/research/centres/european/research/CELWPEL022012FINAL.pdf
Murphy, C. ?European Court of Justice grapples with secret evidence in UK immigration case?, 14 June 2013, available at http://ukhumarightsblog.com/2013/06/14/european-court-of-justice-grapples-with-secret-evidence-in-uk-immigration-case-dr-cian-murphy/#more-18765
Murphy, C. (2013) ?Counter-Terrorism and the Culture of Legality: The Case of Special Advocates?, 24 King?s Law Journal, pp.19-37
Nascimbene, B. Diritto degli Stranieri, (Padova: CEDAM, 2004)
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Oxford Human Rights Hub, ?Justice and Security Act 2013: Impact on Open Justice and Trial Rights?, available at http://ohrh.law.ox.ac.uk/justice-and-security-act-2013-impact-on-open-justice-and-trial-rights/
Pace, A. (2008) ?L?apposizione del segreto di Stato nei principi costituzionali e nella legge n.124 del 2007?, Giurisprudenza Costituzionale
Pizzetti, F. G. (2014) ?Il più recente orientamento della corte costituzionale nel caso Abu Omar: novità sul segreto di stato??, 6 Processo penale e Giustizia, pp.129- 138
Policy Department, ?The Right of Citizens to move and reside freely within the territory of the European Union?, (2009)
Policy Department, ?Developing an EU Internal Security Strategy, fighting terrorism and organized crime?, (2011)
Policy Department, ?National security and secret evidence in legislation and before the courts: exploring the challenges?, Study for the LIBE Committee (2014)
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Sagar, R. (2007) ?On Combating the Abuse of State Secrecy?, 15(4) Journal of Political Philosophy, pp.404 - 427
Salgado,R. P. (1988) ?Government Secrets, Fair trial, and the Classified Information procedures Act?, 98 Yale Law Journal., pp.427 - 446
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Seneca, Medea (I A.D.)
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Stone, G. and Marshall, W. ?Secrecy, the Enemy of Democracy?, The Chicago Tribune, 17 December 2006, available at: http://articles.chicagotribune.com/2006-12-17/news/0612170458_1_secrecy-enemy-cripples
Sullivan, J. (2014) ?Closed Material Procedures and the Right to a Fair Trial?, 29 Maryland Journal of International Law, pp.269 ? 292
Sullivan, G. (2014) ?Secret Justice inside the EU courts?, available at http://www.aljazeera.com/INDEPTH/OPINION/2014/04/SECRET-JUSTICE-INSIDE-EU-COURT-2014417143255779945.HTML
Thompson, D. F. (1999) ?Democratic Secrecy?, 114(2) Political Science Quarterly, pp.181-193
Tomkins, T. (2011) ?National Security and the Due Process of Law?, Current Legal Problems, pp.1-39
Travi, A. Lezioni di Giustizia Amministrativa, 11th ed., (Torino: Giappichelli Editore, 2014)
Tridimas, T. (2009) ?Terrorism and the ECJ: Empowerment and democracy in the EC legal order?, 34 European Law Review, pp.103 - 126
Turner, S. and Schulhofer, S. J. (2005) ?The Secrecy problem in Terrorism Trials?, Liberty & National Security Project, Brennan Center For Justice at NYU School of Law, available at: https://www.brennancenter.org/sites/default/files/legacy/publications/20050000.TheSecrecyProbleminTerrorismTrials.pdf
Vadeschi, A. (2012) ?Il segreto di Stato tra tradizione e innovazione: novità legislative e recenti evoluzioni giurisprudenziali?, 3 Diritto pubblico comparato ed europeo, pp.978- 1012
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Williams, J.R. (2014) ?Crossing the Rubicon by Transporting Secret Justice across to Europe: Closed Material Procedure in the UK and EU Courts?, 6 Gray?s Inn Student Law Journal, pp.3-31
European Court of Justice?s case-law
Case C-294/83 Les vertes v European Parliament, Judgment of 23 April 1986
Case C?387/05 Commission v Italy [2009] ECR I-11831, Judgment of 15 December 2009
ZZ
C-300/11 ZZ v Secretary of State for the Home Department, Opinion of the Advocate General Bot of 12 September 2012
Court of Justice of the European Union, Press release No. 70/13, Luxembourg, 4 June 2013, Judgment in Case C-300/11 ZZ v Secretary of State for the Home Department
Case C-300/11 ZZ v Secretary of State for the Home Department [2013]ECR I-0000, Judgment of 4 June 2013
Kadi:
Case T-315/01 Kadi v. Council and Commission, [2005] ECR II-3649, Judgment of 21 September 2005
Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351, Judgment of 3 September 2008
General Court of the European Union, Press release No. 95/10, Luxembourg, 30 September 2010, Judgment in Case T-85/09 Yassin Abdullah Kadi v Commission
Case T-85/09, Kadi v. Commission [2010] ECR II-5177, Judgment of 30 September 2010
Appeal Brought by the European Commission against the Judgment of the General Court in case T-85/09, 2011 O.J. (C 72) 9; 2011 O.J. (C 72) 9 (EU Council appeal); 2011 O.J. (C 72) 10 (UK appeal)
Joined Cases C-584/10 P, C-593/10 P & C-595/10 P, Commission and Others v Yassin Abdullah Kadi, Judgment of 18 July 2013
Ayadi:
Case T?253/02 Ayadi v Council, Judgment of 12 July 2006
Joined Cases C-399/06 Pand C-403/06 PAyadi v Council and Commission Cases, Judgment of 3 December 2009
Case C?183/12 P Ayadi v Commission, Judgment of 6 June 2013
Case T-527/09 RENV Ayadi v European Commission, Judgment of 14 April 2015
OMPI
Case T-228/02 Organisation des Modjahedines du Peuple d?Iran v Council [2006] E.C.R. II-4665, Judgment of 12 December 2006
Case T-256/07 People?s Mojahedin Organization of Iran v Council [2008] ECR II-0000, Judgment of 23 October 2008
Court of the First Instance, Press release No. 84/08, 4 December 2008, Judgment in case T-284/08 People's Mojahedin Organization of Iran v Council
Case T-284/08 People?s Mojahedin Organization of Iran v Council [2008] ECR I-3487, Judgment of 4 December 2008
C-27/09 French Republic v People?s Mojahedin Organization of Iran, Opinion of Advocate General Sharpston of 14 July 2011
Case C-27/09 P French Republic v. People?s Mojahedin Organization of Iran [2011] ECR I-0000, Judgment of 21 December 2011
European Court of Human Rights? case-law
ECtHR Ireland v United Kingdom, Appl. N. 5310/71, Judgment of 18 January 1978
ECtHR Ruiz-Mateos v Spain, Appl. No. 12952/87, Judgment of 23 June 1993
ECtHR Foucher v France, Appl. No. 22209, Judgment of 18 March 1995
ECtHR Doorson v the Netherlands, Appl.No.20524/92, Judgment of 26 March 1996
ECtHR Chahal v the United Kingdom, Appl. No. 22414/93, Judgment of 15 November 1996
ECtHR Jasper v the United Kingdom, Appl. No. 27052/95, Judgment of 16 February 2000
ECtHR Rowe and Davis v the United Kingdom, Appl. No 28901/95, Judgment of 16 February 2000
ECtHR Dowsett v the United kingdom, Appl. No. 39482/98, Judgment of 24 June 2003
ECtHR Edwards and Lewis v the United Kingdom, Appl.Nos.39647/98 and 40461/98, Judgment of 27 October 2004
ECtHR Saadi v Italy, Appl. N. 37201/06, Judgment of 28 February 2008
ECtHR C.G. and Others v Bulgaria, Appl.No.1365/07, Judgment of 24 April 2008
ECtHR A and Others v the United Kingdom, Appl. No. 3455/05, Judgment of 19 February 2009
ECtHR Raza v Bulgaria, Appl. No. 31465/08, Judgment of 11 February 2010
ECtHR Kennedy v United Kingdom, Appl.No.26839/05, Judgment of 18 May 2010
ECtHR Liu v Russia (No2), Appl. No. 29157/09, Judgment of 26 July 2011
ECtHR Nasr and Ghali v Italy, Appl. No.no.44883/09
European Court of Human Rights, Press Release 211, 23 June 2015, Chamber hearing in the case of Ghali v Italy (Appl. No. 44883/09)
UK case-law
R v Sussex Justices Ex p McCarty [1924] 1 KB
Kanda v Government of Malaya [1962] AC 322 PC, 337
R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] AC 274
Carnduff Rock [2001] EWCA Civ 680; [2001]1 W.L.R.1786
Secretary of State for the Home Department v. Rehman [2003] 1 AC 153
R v H [2004] UKHL 3, [2004] 2 AC 134
R v H and C [2004] UKHL 3
Abu Qatada v Secretary of State for the Home Department (SC/15/2002, 8 March 2004)
Roberts v Parole Board [2005] UKHL 45
MB v Secretary of State for the Home Department [2007] UKHL 46; [2008] 1 A.C. 440
MH and others v Secretary of State for the Home Department [2008] EWHC 2525 (Admin)
R (on the application of Al-Sweady) v Secretary of State for Defense [2009] EQHC 1687 (Admin)
Secretary of State for the Home Department v AF (No3) [2009] UKHL 28; [2010] 2 A.C. 269
R(Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65
Home Office v Tariq [2011] UKSC 35, [2012] 1 A.C. 452
Al Rawi v Security Service [2011] UKSC 34; [2012] 1 A.C. 531
Bank Mellat
Bank Mellat v HM treasury [2010] EWHC 350 (QB)
Bank Mellat v HM Treasury [2010] EWCA Civ 483
Bank Mellat v HM treasury [2013] UKSC 39
Bank Mellat v HM treasury [2013] UKSC 38
Bank Mellat v HM Treasury [2014] EWHC 3631 (Admin)
Bank Mellat v HM Treasury[2015] EWCA Civ 1052
Italian case-law
Constitutional Court , Judgment 82/1976, 14 April 1976
Constitutional Court, Judgment 86/1977, 24 May 1977
Council of State, sez.VI, Judgment 579, 7.May 1988
Council of State, sez. IV, Judgment 241, 4 March 1992
Italian Council of State, sez. IV, Judgment 1036, 26 November 1993
Italian Council of State, sez.VI, Judgment 966, 7 December 1993
Italian Council of State, sez.VI, Judgment 1243, 19 July 1994
Italian Council of State, sez. IV, Judgment 1024,10 June 1996
TAR Piemonte, sez. II, Judgment 168, 26 January 2002
Cass., sez I., Judgment 6370, 1 April 2004
TAR Lazio, sez. I ter, Judgment 15336, 10 December 2004
Council of State, sez. IV, Judgment 88, 12 January 2006
Cass. sez.I, judgment 5518, 14 March 2006
TAR Lombardia Brescia, sez.I, Judgment 1140, 6 November 2007
Cass., Ordinance 462, 13 January 2010
Council of State, sez.I, parere n.2226, 1 July 2014
Abu Omar:
Reg. C. 2/2007; Reg. C. 3/2007; Reg. C. 6/2007; Reg. C. 14/2008; Reg. C. 20/2008; Constitutional Court, Judgment n.106/2009 ,11 March 2009
Trib. Milano, IV sez. Pen., Judgment 535/2009, 4 November 2009
Corte App., sez. III pen., Judgment 3688/2010, 15 December 2010
Cass., sez. V pen., Judgment 46340/2012, 19 September 2012
Corte App., sez. IV pen., Judgment 985/2013, 12 February 2013
Constitutional Court, Judgment 24/2014, 13 February 2014
Cass., sez. I pen., Judgment 20447/2014, 16 May 2014
Canadian case-law
Charkaoui v. Canada, 2007 SCC 9 [2007] 1 SCR 350
United States case ? law
Joint Anti-Facist Refugee Committee v McGrath 341 US 123 (1951)
Roviaro v United States, 353 U.S. 53 (1957)
United States v. Abu Ali, 528 F.3d 210, 245?46 (4th Cir. 2008)
United States v Moussaoui, No 01 - cr - 00455, 2002 WL 1987964, (ED Va 29 August 2002)
United States v Bin Laden, No 98 ?cr-01023, 2001 WL 66393 (SDNY 25 January 2001) (Bin Laden II)
United States v Bin Laden, 58 F Supp 2d 113, 116 ? 17 (SDNT 1999)
United States v Wilson, 750 F2d, 9
International acts
Universal Declaration of Human Rights (1948)
European Convention on Human Rights (1950)
International Covenant on Civil and Political Rights (1966)
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities, ASSETS FREEZE: EXPLANAZTION OF TERMS (Updated in Oct 2011 and approved by the Committee on 30 December 2011), paragraph 4, 14 June 2012
UN Security Council Resolution 1267 (1999), S/RES/1267
UN Security Council Resolution 1333 (2000), S/RES/1333 (2000) as maintained and developed by subsequent resolutions such as 1363 (2001), 1373 (2001), 1390 (2002), 1452 (2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1624 (2005), 1699 (2006), 1730 (2006), 1735 (2006), 1822 (2008), 1904 (2009), 1988 (2011), 1989 (2011), 2082 (2012), 2083 (2012), 2133 (2014)
UN Security Council Resolution 1373 (2001), S/RES/1373
?Compilation of good practices on legal and institutional frameworks and measures that ensure respect for human rights by intelligence agencies while countering terrorism, including on their oversight?, UN document A/HRC/14/46 (2010)
?The Rabat Memorandum on Good Practices for Effective Counterterrorism Practice in the Criminal Justice Sector?, Global Counterterrorism Forum, Criminal Justice Sector/Rule of Law Working Group (2012)
?Recommendations for Using and Protecting Intelligence Information In Rule of Law-Based, Criminal Justice Sector-Led Investigations and Prosecutions?, Global Counterterrorism Forum, Criminal Justice Sector/Rule of Law Working Group (2014)
European Union acts
Regulation No.3 implementing Article 24 of the Treaty establishing the European Atomic Energy Community, Official Journal of the European Union, L 17, 1958, p. 406-416
Rules of Procedure of the General Court of 2 May 1991 as last modified on 19 June 2013
Proposal for a Council regulation on the security measures applicable to classified information produces or transmitted in connection with European Economic Community or Euratom activities, COM (92) 56 final, submitted by the Commission on 26 February 1992
Declaration No 17 on the right of access to information, annexed to the Final Act of the Treaty on European Union in G.U.CE., C 191 of 29 July 1992
Resolution on the proposal for a Council regulation (EEC) on the security measures applicable to classified information produced or transmitted in connection with EEC or Euratom activities, Official Journal of the European Union, C 176, 1993
Charter of Fundamental Rights of the European Union (2000)
Council Decision 2001/264/EC of 19 March 2001 adopting the Council?s security regulations, Official Journal of the European Union, L 101, 2001.1
Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of the 30 May 2001 regarding public access to European Parliament, Council and Commission documents, Official Journal of the European Union L 145/43 (31 May 2001)
Commission Decision 2001/844/EC, ECSC, Euratom of 29 November 2001 amending its internal Rules of Procedures, Official Journal of the European Union, L 317
Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism
Council Regulation (CE) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism
Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan
Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information
Directive 2004/38/CE of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
Council Decision 2005/930/EC of 21 December 2005 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/848/EC
Treaty of European Union (2007)
Treaty on the Functioning of the European Union (2007)
Council Decision 2007/868/EC of 20 December 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/445/EC
Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC
Commission Regulation (EC) No. 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban
Commission Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban
The Stockholm Program ? ?An open and secure Europe serving and protecting the citizens? , Official Journal of the European Union, C 115, 11 May 2010
Declaration by the Council and the Commission on the protection and handling of classified information, Brussels, 23 March 2011, available at: http://www.statewatch.org/news/2011/mar/eu-council-classified-information-8054-add1-11.pdf
Council Decision 2011/292/EU of 31 March 2011 on the security rules for protecting EU classified information, Official Journal of the European Union L 141, 2011
Agreement between the Member States of the European Union, meeting within the Council, regarding the protection of classified information exchanged in the interests of the European Union, Official Journal of the European Union C 202, 2011
Council of the European Union, ?Draft rules of procedure of the General Court? No. 7795/14, 17 March 2014
Rules of Procedure of the General Court of 1 July 2015
English legislation
Magna Carta (1215)
Special Immigration Appeals Commission Act (1997)
Human Rights Act (1998)
Anti-Terrorism, Crime and Security Act (2001)
The Special Immigration Appeals Commission (Procedure) Rules (2003)
Prevention of Terrorism Act (2005)
Counter-Terrorism Act (2008)
Terrorism Prevention and Investigation Measures Act (2011)
Justice and Security Act 2013 (UK)
Bar Code available at https://www.barstandardsboard.org.uk/regulatory-requirements/the-old-code-of-conduct/
Italian legislation
Italian Penal Code (1930)
Constitution of the Italian Republic (1948)
Italian Code of Criminal Procedure (1989)
Law 241/1990: ?New rules concerning the Administrative Procedure and the Right of Access to Administrative Documents? as amended by Law 15/2005: ?Changes and integrations to Law 7 August 1990 n. 241, concerning general rules on the administrative action? and by Legislative Decree 36/2006 ?Transposition of Directive 2003/98/CE on the re-use of public sector information?
Legislative decree 286/1998: ?Unified Text on measures concerning immigration and norms on the status of foreign citizens? as amended by Law 189/2002: ?Amendments to the legislation on immigration and asylum? ( ?Bossi-Fini Law?), by Law Decree 92/2008: ?Urgent provisions on public security? (?security decree?), by Law 94/2009, ?Provisions on public security? (?security package?) and by Law Decree 89/2011: ??Urgent provisions completing the transposition of Directive 2004/38/E on free movements of EU citizens and transposing Directive 2008/115/EC for returning illegally staying third-country nationals?
Legislative decree 144/2005: ?Urgent provisions to combat international terrorism?, converted in Law 155/2005
Law 124/2007, ?Intelligence system for the security of the Republic and new provisions governing secrecy? (replacing Law 801/1977) as amended by Law 133/2012, ?Changes to Law 124/2007 concerning the Intelligence System for the security of the Republic and the new provisions governing secrecy?
Legislative decree 30/2007: ?Transposition of Directive 2004/38 on the right of citizens of the Union of their family members to move and reside freely within the territory of the Member States? as amended and consolidated by Legislative decree 32/2008: ?Amendments and integrations to the Legislative decree n.30/2007, transposing Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States? and by decree law 89/2011: ?Urgent provisions completing the transposition of Directive 2004/38/E on free movements of EU citizens and transposing Directive 2008/115/EC for returning illegally staying third-country nationals?
Decree of the President of the Council, 8 April 2008
Code of Administrative procedure (legislative decree n.104/2010)
Legislative decree 150/2011
Canadian legislation:
Canadian Charter of Rights and Freedoms (1982)
Immigration Act, R.S.C. 1985, c.I-2
Immigration and Refugee protection Act, S.C. 2001
An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, SC 2008, c.3
United States legislation:
United States Constitution (1787)
Classified Information procedures Act (CIPA), Pub. L. No. 96-456, 94 Stat. 2025, 2025-31 (1980) (codified at 18 U.S.C. app. 3)
Websites
http://www.sicurezzanazionale.gov.it/sisr.nsf/index.html
SecurityClearedJobs.com: https://www.securityclearedjobs.com/staticpages/10287/get-security-cleared/
(download .pdf file of Dissertation of Isabella Oldani, Università di Trento, 2016)