National security secrecy in ECtHR proceedings—the Court’s eroding toolbox against unjustified secrecy and abuse

ABSTRACT This article asks how the European Court of Human Rights procedurally answers the challenge of adjudicating cases that involve information kept secret on national security grounds. It first establishes the central characteristics of this challenge. Against this background, it analyses 131 published case communications, case law on the Court’s procedural solutions and the Court’s Rules of Procedure, including the newly introduced Rule 44F on the treatment of highly sensitive documents. This demonstrates that before the introduction of Rule 44F, the Court’s procedures could take into account both the justifiability of secrecy under the substantive rights interpretation and that national security secrecy may be unnecessary or abusive. However, the Rule 44F procedure has changed this status quo. Adopting fair trial principles and with a cooperative nature, it has made the Court less attuned to unjustified national security secrecy in a context where such reactiveness seems more important than ever.