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revelations by these actors. In order for the press to perform their vital function as an external,
unofficial control mechanism, robust freedom of information laws and laws protecting
journalists’ confidential sources77 are absolutely necessary. States must limit prosecutions for
breaching secrecy provisions to their officials,78 introduce a mandatory public interest test and
oblige the courts to consider the public interest value when it comes to the publication of official
State secrets.
63. In all cases judges must be the ultimate arbitrators in assessing the merits of the State
secrecy claim when serious human rights violations are at stake. Their rulings may allow the
disclosure of the disputed information to the public or to a terrorist suspect and his lawyer in
legal proceedings. In order to test secrecy claims in the latter case, a judicial body should have
access to the actual evidence a Government is seeking to protect, rather than mere summaries or
declarations provided by the Government. Where there are reasons for excluding elements that
can justifiably be considered as State secrets, courts should consider counter-balancing measures
for not making available such information in a public hearing, for instance by limiting access to
the information to the (if necessary, security cleared) lawyer of the suspect. Only when strictly
necessary could a judge decide to make a distinction between disclosing the provenance of the
evidence (the source and the method used) and the content of the information, which should
always be open to challenge.
III. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
64. The increased powers of intelligence services to conduct measures that seriously interfere
with individuals’ rights, as well as the increasing relevance of intelligence for legal and
administrative actions, make it essential that adequate accountability mechanisms are put in
place to prevent human rights abuses. Under international human rights law, States are under a
positive obligation to conduct independent investigations into alleged violations of the right to
life, freedom from torture or other inhuman treatment, enforced disappearances or arbitrary
detention,79 to bring to justice those responsible for such acts, and to provide reparations where
77
In Belgium, for instance, the Law on the protection of journalistic sources of 7 April 2005
(Moniteur Belge, 27 April 2005) permits journalists and media employees explicitly “to keep
their sources secret” (art. 3).
78
See in this context the “Cicero” ruling of the German Constitutional Court in 2007, which
stated that journalists cannot be legitimately accused of betrayal of State secrets for publishing
classified information obtained from informers. See BVerfG, 1 BvR 538/06 of 27.2.2007,
Absatz-Nr. (1-82), available at http://www.bverfg.de/entscheidungen/rs20070227_1bvr053806.
html.
79
Aydin v. Turkey (1997) 25 ECHR 251; Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, arts. 5, 6, 12 and 13; Human Rights Committee, general
comment No. 31 (2004) on the Nature of the General Legal Obligation Imposed on States Parties
to the Covenant, paras. 15 and 18.
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