The European Court and ‘secret’ state documents
On 9 April, EHRAC submitted a response to the consultation by the European Court of Human Rights’ Standing Committee on the Rules of the Court on the Treatment of Classified Documents. In it, we make a range of points about state authorities’ non-disclosure of documents on the basis that they are ‘classified’ or otherwise confidential, or when the authorities claim not to have certain documents in the first place.
Our paper responds to the Court’s proposal to introduce a new Rule of Court (Rule 44F) on classified documents. Based on our extensive experience of litigating cases from Russia, Ukraine and the South Caucasus states – where access to certain documents is regularly denied to us on the basis that they are said to be classified or it is claimed that they do not (or no longer) exist – we are broadly supportive of the proposed draft rule providing:
- it sets out a new clear and specific obligation on states to disclose to the Court any information which is claimed to be confidential; and
- such claims must be fully reasoned and those reasons will be subjected to strict scrutiny by the Court; and
- that the Court will draw adverse inferences where a party falls short of the new procedures.
Thus, the Court’s new practice should result in a higher level of disclosure (of documents which governments have previously refused to disclose), failing which, there will be clearer and more definitive consequences if a party unjustifiably seeks to rely on claims of secrecy in refusing to provide disclosure.
We also propose a concomitant right for applicants to the Court to claim confidentiality, for example, in situations where there is evidence of intimidation by states authorities.