A/HRC/16/50 prevent disclosure of information in the context of criminal trials, the use of secret information as evidence, and the use of anonymous witnesses too often have resulted in a lack of justice for victims of terrorism (for instance where problems associated with intelligence-related evidence result in the dismissal of judicial proceedings against individuals suspected of involvement in terrorist activity), denial of the right to a fair trial for individuals accused of terrorist activity (for instance in cases where a civil proceeding, investigation and/or prosecution is halted on grounds of State secrecy) or both. 35. While the legitimate use of a State secrets privilege – as in cases where it is invoked to exclude specific evidence, the exposure of which would necessarily harm national security – can be critical to considerations of national security, its overly broad application by some States has resulted in a lack of accountability including for serious human rights violations.21 Non-disclosure of information and evidence deemed prejudicial to security interests has hampered investigations and prosecutions in relation to the alleged complicity of a number of States in the practice of renditions, for instance. The European Parliament has emphasized the need for accountability in this regard, deeming it necessary to “review by limiting and restrictively defining the exceptions that flow from the notion of ‘State secret’ […] to avoid abuses and deviations that […] contradict human rights obligations” and “establish specific mechanisms to allow for access to secret information by parliaments and judges, as well as for the release of the information after a certain period of time”.22 36. Following on the reports of the Committee on Legal Affairs and Human Rights on secret detentions and illegal transfers of detainees, the Parliamentary Assembly of the Council of Europe has called for the elaboration of guidelines on human rights and the fight against impunity which would “stress that state secrecy and immunities do not prevent effective, independent and impartial investigations into serious human rights violations […] and that those responsible should be held to account”.23 The forthcoming Committee report on “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations” will be an important further step. While some action has been taken by individual Member States of the Council of Europe in follow-up to the recommendations flowing from these investigations, a great deal more is needed in order to combat impunity and ensure accountability, including through investigations and prosecutions at national levels. 37. Serious concerns have been raised in the course of legal proceedings regarding the broad use of State secrecy in several countries.24 For instance, in October 2009 the 21 22 23 24 The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism also has raised concerns over the increasing use of State-secrecy provisions and public interest immunities by certain States, including Germany, Italy, Poland, Romania, the former Yugoslav Republic of Macedonia, the United Kingdom or the United States “to conceal illegal acts from oversight bodies or judicial authorities, or to protect itself from criticism, embarrassment and – most importantly – liability” (A/HRC/10/3, para. 59). European Parliament resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI)) of 14 February 2007, para. 194, and in particular paras. 202 – 206 on secret services. See also European Parliament resolutions 2006/2027(INI) of 6 July 2006 and 2008/2179(INI) of 19 February 2009. The Parliamentary Assembly of the Council of Europe has also recognized the problems caused by the invocation of State secrecy, and has called on Council of Europe Member State governments to make available to their national parliaments all relevant information held by them on the State’s role in renditions and secret detentions (Parliamentary Assembly resolution 1562, para. 18.1.2). Recommendation 1876 (2009), para. 2.2. See for example El Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2005) (No. 1:05cv1417); aff’d, 479 F. 3d 296 (4th Cir. 2007). Applications are pending before the European Court of Human Rights against the Government of the former Yugoslav Republic of Macedonia for its role in the 13