Securing Fair Trial, Human Rights and State Security before the Courts: A European Closed Material Procedure

The notion of security is gradually changing in Europe. Since the end of the Cold War, the traditional state-centric notions of security (international security and state security) have been challenged by new paradigms whose referent is no longer the State but the individual. Domestic and, above all, European Courts (ECtHR and ECJ) are playing a leading role in shifting the paradigm of security from traditional approach to person-centred approach by way of expanding the scope of human rights dimension. The paper draws on European Courts’ pertinent case-law on responses to terrorism and migration issues in order to identify three main principles which presently strike the balance between human rights and State security. These principles no longer allow States to tackle security threats by ex post and/or preventive measures every time they are at odds with human rights, to begin with the right to a fair trial. For State’s actions to be more respectful of the European case law the paper suggests solutions aimed at striking a new balance between human rights and State security as a matter of procedural law. Among the others, the adoption at European level of a closed material procedure might create in sensitive cases a safe “procedural environment” for a fair trial so as to protect both individual rights and State security.