14
Remedial bodies’ challenges:
access to classified information
and necessary expertise
14.1. Access to classified
information
ECtHR Rules of the Court
Rule 33 – Public character of documents
1. All documents deposited with the Registry by the parties or by any third party in connection with an application (…) shall be accessible to the public (…).
2. Public access to a document or to any part of it may
be restricted in the interests of morals, public order or
national security in a democratic society, where the interests of juveniles or the protection of the private life of the
parties or of any person concerned so require, or to the
extent strictly necessary in the opinion of the President
of the Chamber in special circumstances where publicity
would prejudice the interests of justice.
3. Any request for confidentiality made under paragraph
1 of this Rule must include reasons and specify whether
it is requested that all or part of the documents be inaccessible to the public.
Rule 63 – Public character of hearings
1. Hearings shall be public unless, in accordance with paragraph 2 of this Rule, the Chamber in exceptional circumstances decides otherwise, either of its own motion or
at the request of a party or any other person concerned.
2. The press and the public may be excluded from all or
part of a hearing in the interests of morals, public order
or national security in a democratic society, where the interests of juveniles or the protection of the private life of
the parties so require, or to the extent strictly necessary
in the opinion of the Chamber in special circumstances
where publicity would prejudice the interests of justice.
3. Any request for a hearing to be held in camera made
under paragraph 1 of this Rule must include reasons and
specify whether it concerns all or only part of the hearing.
ECtHR, Rules of the Court, Registry of the Court, 14 November 2016, pp. 17 and 34
There is no harmonisation among Member States
of the conditions under which classified information
may be disclosed and used as evidence during judicial
proceedings. Most Member States do not allow courts
to use intelligence information that is not available to
the parties and that does not meet evidential standards.
In Italy, for example, every piece of evidence must be
disclosed to all parties. Classification of documents can
only be challenged by a judge or prosecutor in cases
where such information may be deemed as having
been illegitimately classified.534
The FRA 2015 report highlighted how NCND policy
can make remedial bodies inaccessible in practice.535
To tackle this challenge, and increase remedies’
effectiveness and transparency, some Member States
have established alternative mechanisms. These include
the use of ‘second-hand’ evidence, the ‘assumed facts’,
the ‘closed material procedures’, the establishment
of open hearing and in camera sessions and the use
of ’shielded witnesses’.
The United Kingdom has developed adapted
procedures aimed at enhancing transparency in access
to information for complaints involving classified
intelligence. The Investigatory Powers Tribunal may
assume, “for the sake of the argument”, that the
facts asserted by the complainant are true (‘assumed
facts’).536 It may also implement the so-called ‘Closed
Material Procedures’, which allow the court to use
classified information as evidence.537 Section 68(6) of
the RIPA, which was not amended by the IPA, provides
that “[i]t shall be the duty of the persons specified in
subsection (7) to disclose or provide to the Tribunal
534 See ECtHR, Nasr and Ghali v. Italy, No. 44883/09,
23 February 2016; Bigo, D., Carrera, S., et al. (2014), p. 112.
535 See FRA (2015a), p. 69.
536 United Kingdom, IPT, (2016), p. 8.
537 Bigo, D., Carrera, S., et al. (2014), pp. 21-25.
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