Transparency and Secrecy in European Democracies: Contested Trade-Offs by Dorota Mokrosinska

Author:Dorota Mokrosinska [Mokrosinska, Dorota]
Language: eng
Format: epub
ISBN: 9780429646799
Goodreads: 53717319
Publisher: Routledge
Published: 2020-11-12T00:00:00+00:00

Diplomatic cables as evidence in legal proceedings

The above cases show an area of tension between individual rights and the general interest in protecting diplomatic information in cases where that individual does not have full access to charges against him. This section looks into the inverse situation, that is, cases in which an individual wishes to submit diplomatic cables – legally or illegally obtained – as evidence in court. A review of the case law at hand suggests positive judicial attitudes towards the bringing of exonerating evidence. The assumption here is that secret documents that have already entered the public domain, for instance through reprints in newspapers, can be used in court. Especially interesting are the effects of the online mass dissemination of secret diplomatic documents by WikiLeaks on evidentiary rules, since the searchable database publishes diplomatic cables without the consent of governments (Fenster 2012, p. 762).

The European Court of Human Rights (ECtHR) was the first to accept WikiLeaks cables as evidence. In El-Masri v. The Former Yugoslav Republic of Macedonia (FYROM or Macedonia), a 2012 Grand Chamber case, the applicant submitted several leaked cables referring to a secret rendition operation in which he allegedly had been involved.17 El-Masri claimed to have been handed over by FYROM police officers to agents of the US Central Intelligence Agency (CIA), who had then transferred him to a secret detention facility in Afghanistan, where he had been ill-treated over a period of four months. Proof of the existence of the facility was found in several NGO reports.

Furthermore, diplomatic cables sent by US diplomatic missions in Germany, Spain, and the FYROM and made available on the WikiLeaks website made reference to the CIA-run flights and the applicant’s case in particular (§77). The Court applied a “beyond reasonable doubt” standard of proof (paras. 167 and 199) when considering the “large amount of indirect evidence” (para. 157). As a result, the burden of proof shifted to the respondent government, which failed to demonstrate conclusively why the evidence could not corroborate the applicant’s allegations. The Court convicted the respondent State of the applicant’s ill-treatment and transfer into the custody of the US authorities despite the existence of a real risk that he would be subjected to further treatment contrary to Article 3 of the Convention.

WikiLeaks cables are also not being ruled inadmissible before EU Courts. In Persia International Bank v. Council (2013), the Iranian Bank claimed that the Council had not carried out a genuine assessment of the circumstances of the case when it adopted restrictive measures against it.18 Relying on WikiLeaks cables, the applicant brought evidence that EU Member States, in particular the UK, were subject to US pressure to ensure the adoption of restrictive measures against Iranian entities when they provided evidence to the Council (paras. 88–90). According to the Council’s contention no account should be taken of diplomatic cables as evidence. The General Court disagreed and allowed the evidence, but decided to rule in favour of the Council, nonetheless. The Court found that

the fact that

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.