Decision on Secret Evidence by the European Court of Human Rights Worth Noting

Two European Court of Human Rights (ECtHR) cases decided in July 2014 bring some clarity to the utility and compatibility of secret evidence with international human rights standards. In both cases the defendants challenged evidence used against them which they (and their legal counsel) were not allowed to see.  Given the importance of these questions to military commission proceedings, the ECtHR’s decisions are useful to report here. They add to a number of domestic judicial decisions in European states that explicitly prohibit relying on secret evidence in cases involving alleged terrorists. In Nedim Şener v. Turkey and Şık v. Turkey (Nos. 38270/11 and 53413/11) a violation of Article 5 §3 of the Convention was claimed. This provision requires trial occur within a reasonable period, and was claimed on the basis of unjustified continued pre-detention; a claim of Article 5 §4 violation (the right to have the lawfulness of a detention speedily examined) was made as a result of domestic authorities’ failure to give the applicants the opportunity to challenge confidential evidences; finally violation of Article 10 (protection of freedom of expression) was also addressed on the basis of the chilling effect of an unreasonably long detention on the freedom of expression. Both cases concerned the length of a continued pre-detention for two investigative journalists, and both had been accused of “serious terrorist offences” under the Turkish criminal code. Both journalists were indicted for aiding and abetting the organization Ergenekon1 by participating in the production of two books accusing the government of promoting the infiltration of Islamists into the state apparatus. As the Council of Europe’s Press statement on the case notes “The books also insinuated that the Ergenekon trial had been diverted from its proper purpose by the same Islamist leaders, who sought to stifle opposition to the government”. Violation of Article 5 §3 The Court noted that they had been had been informed by Turkey that the applicants were suspected of being members of a criminal organization. But it observed that this offence was not listed among the ones justifying pre-trial detention. As a result, the ECtHR said it was doubtful whether it was necessary to remand the accused in custody for more than a year in the context of a preliminary investigation. Moreover, Turkey had failed to give substantial reasons justifying the refusal of the applicants’ request for release on bail. Then, the Court considered that there had been no specific evidence establishing the need to keep the applicants in pre-trial detention. What had been provided to the European Court was a stereotyped list of generic reasons and the judges were clear that a ‘shopping list’ approach was not sufficient to justify lengthy detention without trial. The Court concluded that, in accusing the applicants from the outset of the investigation of “serious terrorists offences”, domestic authorities had based the unjustified length of the detention on irrelevant and insufficient reasons, in breach of Article 5 §3. Violation of Article 5 §4 The Court first reiterated that domestic authorities had to guarantee that both journalists were made aware of any observations submitted and had the opportunity to challenge them directly. The Court made a factual determination that the accusations against both men were based mainly on information provided by third parties and not by the journalists themselves. Then, the Court concluded that neither of the two men nor their lawyers had the possibility of challenging the allegations against them as the key items of evidence were not revealed due to the governments claims of confidentiality. Transparency and capacity to examine documents and testimony were determined as crucial to challenge the lawfulness of their detention. The Court was unequivocal that Article 5 §4 had been breached. Violation of Article 10 The Court considered that the unjustified length of the detention could have a chilling effect on the journalists willingness to express their point of views on matters of public interest and could create the conditions for self-censorship for any investigative journalist writing on sensitive or political subjects. So, as the measures had not been proportionate to the legitimate aims pursued and then, unnecessary in a democratic society, ensuring a violation of Article 10 of the Convention in both cases. The cases underscore the robustness of the European Court of Human Rights’ due process jurisprudence.  There is a consistent willingness to challenge national security claims by states in the context of due process exceptionalism, and fairly rigid application of standard operative presumptions with respect to the right to liberty. Even as states push evidential boundaries the Court has been consistently trenchant in its willingness to go behind state claims on security and remains skeptical of measures that undermine essential due process rights.  Given the consistent resort of states to the manipulation and reworking of evidential rules in terrorism cases, these cases provide a nice counterweight to domestic practice and are a solid warning to European states on the vigilance of the Court. [Editor’s Note: This post has been revised to include attributions for certain factual statements contained in the Council of Europe’s Press Release, issued by the Registrar of the Court on 02/07/2014 at www.echr.coe.int    

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).