A/67/396 material that has not been disclosed to the subject, the procedure falls short of the essential requirements of due process. 73 As a “core irreducible minimum” the individual must be provided with sufficient information to enable him or her to give an effective answer to the allegations.73 The Supreme Court of the United Kingdom has followed this approach in Secretary of State for the Home Department v. AF. 74 43. The Ombudsperson considers that she has managed to convey to the petitioners the essential case against them in sufficient detail to enable them to answer it. 75 Lawyers acting for petitioners, on the other hand, have informed the Special Rapporteur that they had to guess at the case their clients had to meet, requiring “speculative lawyering” that was difficult to reconcile with their professional obligations. Due to the lack of transparency in the process, it is impossible for the Special Rapporteur to provide an objective assessment of these competing views. What is certain, however, is that the regime allows for the possibility that the petitioner (and even the Ombudsperson) may be kept in ignorance of information that is decisive to the outcome of a delisting petition. In the view of the Special Rapporteur, the only effective way to rectify this unfairness would be for the Security Council to adopt the recommendation in paragraph 59 (a) below, in accordance with the principles set out in paragraphs 17 to 23 and 34 and 35 above. 44. One of the emblematic criticisms of the regime is that the petitioner currently has no right to know the identity of the designating State. The Security Council, in its resolution 1989 (2011), strongly encourages designating States to give permission for their identity to be revealed, but stops short of requiring this. 76 The Ombudsperson has recommended that where fairness necessitates disclosure of this information, there should be no requirement for the designating State’s consent. 77 The Special Rapporteur agrees with this assessment. 45. A further striking feature of the current procedures is the absence of any duty on Member States to disclose exculpatory information. Lawyers acting for petitioners have satisfied the Special Rapporteur that there have been instances in which key exculpatory material was withheld. Rudimentary principles of procedural fairness dictate that a petitioner should have access to any information in the possession of States that might support a delisting application, 78 including any indication that a confession or statement was obtained by torture or ill treatment. 79 The Special Rapporteur recommends that States be subject to an express obligation to indicate whether or not there is such material in their possession; and that a State’s refusal to authorize the disclosure of any such material to the Office of the Independent Designations Adjudicator/Ombudsperson, or its onward disclosure to the petitioner, should provide an independent ground for delisting since such a stance would otherwise frustrate a full and fair judicial review. __________________ 73 74 75 76 77 78 79 12-52254 See European Court of Human Rights, A. v. United Kingdom (2009) 49 EHRR 29, para. 218. See Secretary of State for the Home Department v. AF, [2010] 2 AC 269 HL, paras. 57 and 83. See S/2012/590, paras. 30-32. See Security Council resolution 1989 (2011), para. 14. See S/2012/590, para. 45. See, mutatis mutandis, European Court of Human Rights, Jespers v. Belgium (1981) 27 DR 61; Rowe and Davis v. United Kingdom (2000) 30 EHRR 1; Foucher v. France (1997) 25 EHRR 234; SCC, Stinchcombe [1991] 3 SCR 326; and Chaplin [1995] 1 SCR 727. See CCPR/C/GC/32, para. 33. 17