National Security vs. Procedural Guarantees

Understanding the Motifs of Authority Decisions When National Security Reasons Arise

Abstract

Due to the nature of their activities, secret services handle classified data, the availability of which is limited in the interest of national security. At the same time, there is a collaborative decision-making relationship between immigration authorities and secret services. This relationship affects the merits of cases, and for individuals, the right to a reasoned official decision is violated if they do not have access to the documents on which the decision is based. Consequently, the ability to exercise legal remedies to which individuals are entitled diminishes in direct proportion to the difficulty of accessing classified information, often becoming irreversibly compromised.

Two core values are in tension with each other: national security and the procedural guarantee system. The question is which one can prevail over the other and to what extent. Recently, Hungarian jurisprudence received sharp criticism in this regard. The European Court of Justice, in the GM case, stated that procedures must take national security into account but emphasized the right to an effective remedy and the obligation to provide reasons.

When it comes to viewing documents containing classified data, the system of legal redress against decisions involves a set of complicated, independent, and often unrelated procedures. The final outcome is that the facts on which the procedure is based – which are particularly difficult to ascertain – cannot be effectively challenged.