Remedial bodies’ challenges: access to classified information and necessary expertise
Striking a balance
“[B]oth the principle of the separation of powers as well as the existence of other constitutional demands require that
[the legislator] strikes a reasonable balance between the rights of the individuals involved to apply for judicial legal
remedy and the right to a fair trial as well as […] the constitutional requirements inherent to safeguarding the fundamental interests of the Nation.”
France, Constitutional Court (Conseil constitutionnel), Mrs Ekaterina B., spouse of D., and others, Decision 2011-192 QPC, 10 November 2011 [translation by
Constitutional Court]
“As for the requirements to be met by judicial review of the existence and validity of the reasons invoked by the competent national authority with regard to State security of the Member State concerned, it is necessary for a court to be
entrusted with verifying whether those reasons stand in the way of precise and full disclosure of the grounds on which
the decision in question is based and of the related evidence. Thus, the competent national authority has the task of
proving, in accordance with the national procedural rules, that State security would in fact be compromised by precise
and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken (…). It follows
that there is no presumption that the reasons invoked by a national authority exist and are valid. In this connection, the
national court with jurisdiction must carry out an independent examination of all the matters of law and fact relied upon
by the competent national authority and it must determine, in accordance with the national procedural rules, whether
State security stands in the way of such disclosure.
If that court concludes that State security does not stand in the way of precise and full disclosure to the person concerned of the grounds on which a decision (…) is based, it gives the competent national authority the opportunity to
disclose the missing grounds and evidence to the person concerned. If that authority does not authorise their disclosure, the court proceeds to examine the legality of such a decision on the basis of solely the grounds and evidence
which have been disclosed. On the other hand, if it turns out that State security does stand in the way of disclosure of
the grounds to the person concerned, judicial review (…) of the legality of a decision (…) must (...) be carried out in a
procedure which strikes an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection while limiting any interference with the exercise of that right to that
which is strictly necessary.”
CJEU, C-300/11, ZZ v. Secretary of the State of Home Department, 4 June 2013, paras. 60-64
“Nonetheless, it would have been desirable – to the extent compatible with the preservation of confidentiality and effectiveness of the investigations concerning the applicant – for the national authorities, or at least the Supreme Administrative Court, to have explained, if only summarily, the extent of the review they had carried out and the accusations
against the applicant. (…) Having regard to the proceedings as a whole, to the nature of the dispute and to the margin
of appreciation enjoyed by the national authorities, the Court considers that the restrictions curtailing the applicant’s
enjoyment of the rights afforded to him in accordance with the principles of adversarial proceedings and equality of
arms were offset in such a manner that the fair balance between the parties was not affected to such an extent as to
impair the very essence of the applicant’s right to a fair trial.”
ECtHR, Regner v. The Czech Republic [GC], No. 35289/11, 19 September 2017, paras. 160-161
14.2. Necessary expertise
Past FRA research has identified the judges’ lack of
specialisation in data protection as a serious obstacle
to effectively remedy data protection violations.547
This finding is relevant for surveillance, where, in
addition to the necessary secrecy linked to intelligence,
relevant expertise in ICT or in intelligence, for
instance, is essential.
In the area of surveillance, the highly technical nature of
intelligence matters requires relevant expertise on the
part of the judge. From the perspective of a complainant,
judicial lack of expertise in dealing with intelligence
services may lead a judge to defer to the national
547 FRA (2014c).
intelligence services and their claim that national
security and other special circumstances apply.548
Lack of expertise can be circumvented by establishing
specific mechanisms. In most cases, where bodies
are granted remedial powers but lack technical
understanding of the matters, complementarity is
established with either ad hoc experts or non-judicial
expert bodies. Another form of tackling the lack of
specialisation of the judges is the establishment of
quasi-judicial bodies. The following section details
how some Member States have developed these
mechanisms to allow expert assessment of complaints.
548 Forcese, C. (2012), p. 186.
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