KOMITETI SHQIPTAR                                                              Qendra e Studimeve Parlamentare

     I HELSINKIT                                                                           Center for Parliamentary Studies

To:                   Mr. Spartak Ngjela

                        Chairman, Parliamentary Commission on Legal,

                        Public Administration, and Human Rights Issues

                        Mr. Leonard Demi

                        Chairman, Parliamentary Commission on National Security

                        Ms. Valetina Leskaj

                        Chairwoman, Parliamentary Commission on Education and Mass Media

From:              Prof.as.dr. Vasilika Hysi

                        Executive Director

                        Albanian Helsinki Committee

Mr. Sokol Berberi

                        Executive Director

                        Center for Parliamentary Studies

Tirana, February 27, 2006

 The Albanian Helsinki Committee and the Center for Parliamentary Studies, after reviewing the draft law "On some amendments to Law No. 8457, dated 11.2.1999 “On information classified as state secret,” considered it necessary to submit to the commissions You chair, the following observations:

 1. The draft law envisions additions to articles 1, 2, and 3 of the law No. 8457, dated 11.2.1999, and amendments to articles 23, 24, and 27 of the same law. Article 3 of the law No. 8457, dated 11.2 1999 “On information classified as state secret” envisions: “A state secret, in terms of its contents, values, and state interest, is classified into one of the three levels:

a) “Top secret” when its unauthorized release may cause particularly serious damage to national security;

b) “Secret” when its unauthorized release may cause serious damage to national security;

c)  “Confidential” when its unauthorized release may cause damage to national security”.

After letter “c” of the above article, this paragraph has been added: “Limited”, when its unauthorized release may cause damage to the state's normal activity and to the interests of effectiveness of state institutions”.

            It is our opinion that, looking at the above additions and amendments, the addition planned to article 3 of the law No. 8457, is serious, very disputable, and may lead to unjustified limitation of the constitutional right to be informed.

            First, article 3 of the above-mentioned law provides the levels of classification of state secret, i.e. their classification is made, which are three levels in spite of the damage that may be caused ("especially serious damage," "serious damage," or "damage"), we are talking about national security. In fact, the lawmaker intentionally stressed in the last paragraph of article 3 of law No. 8457 that "no other term shall be used to define state secret."

            Second, although article 2 of the draft includes the addition intended to be made to article 3 of the law as a continuation of the three levels of the classification of state secret, unlike these three levels, the addition does not mention the damage that may be caused to national security. The damage that may be caused to "the state's normal activity" and to "the interests or effectiveness of state institutions" cannot be equated to damage that may be caused to national security. Should this amendment be approved, considering the way it is formulated and the subjective space allowed to its implementation in practice, we think that the citizens' right to be informed about state activity, a fundamental right in democracy, might be violated. The right to information is guaranteed by article 10 of the European Convention, article 23 of the Constitution of the Republic of Albania, and law No. 8503, dated 30.6.1999 “On the right to information on official documents."

            Third, in a democratic society like today's, respect for freedom of expression and the right to be informed require that their limitation be rigorously defined by law and only when it is indispensable for national security, public safety, protection of public order, and prevention of crime, protection of health or morality, protection of others' freedoms and rights. It is worth mentioning that law No. 8457, dated 11.2.1999 “On information classified as state secret" is specific because the unauthorized release of pertinent data may cause damage to national security.

2. The draft law in question does not specify the body or the clear procedure regarding the classification of a piece of information as "limited information." The fact that the last paragraph of the changed article 7 says: "Ministries and state institutions protect classified information of NATO, other countries, and international organizations, in keeping with standards that ensure protection commensurate to that required by NATO, other countries, or international organizations," does not mean that the above bodies also have the right to make classification of information into "limited" information. If those who wrote the draft did not consider it necessary to envision this in the draft, as article 4 of the law No. 8457 talks about the classifying authority, it is our view that this is not justifiable exactly because authorities for classifying information, such as the President, the Prime Minister, etc., are considered original classification authorities, i.e. authorities of first classification, which is always related to damage that may be caused to national security.

3. It is also worth mentioning that damages to the normal activity of the state and interests or effectiveness of state institutions may be caused also due to other factors not related to national security, such as for instance due to corruption, conflict of interest, the commission of criminal offences, failure to rigorously implement laws, etc. In that aspect, we think that what is said in article 10 of the law No. 8457, dated 11.2.1999 “On information classified as state secret," is very significant: "The classification of a piece of information is prohibited when that is done for the purpose of hiding legal violations, ineffectiveness or errors of the administration, depriving a person, institution, or organization of a right, or to obstruct or delay the provision of information that requires protection in the interest of national security." The contents of the above article could be a disturbing warning that the intended addition to article 3 of the law should be reviewed with proper seriousness and necessary objectiveness in order to prevent harmful consequences of limiting the right to be informed. From that standpoint, it is worth referring also to the second paragraph of article 1 of the law No. 8457, that expressly says: "The state is the sole possessor of state secrets, regulating this right with the right of the public to be familiar with its activity." This means that even the limitation of state secrets should be balanced with the right to be informed and the right of the public to be informed. So, limitation should be commensurate to the situation that dictated it.

4. The European Court of Human Rights has created a rich jurisprudence on the right to information. This jurisprudence assumes constitutional value in the Albanian context. The European Court of Human Rights was very attentive and at the same time very rigorous in interpreting and respecting article 10 of the European Convention (Freedom of Expression). "It is the duty of the press" – one of its decisions reads – "to give information and ideas on political issues and other issues of public interest. Not only is it the right of the press to give information, but the public also has the right to receive such information." The European Court of Human Rights has defined regulations on strict interpretations of potential limitations envisioned by the second paragraph of article 10 of the Convention. For instance, in the case Sunday Times against the United Kingdom, the Court said: "Strict interpretation means that no other criteria, except for those mentioned in the provision of exceptions to the rule, could be at the foundation of any limitation and these criteria, on the other hand, should be understood in such a way that language does not extend beyond its normal meaning (Commission Report, May 18, 1977, paragraph 194-195, European Court of Human Rights, B Series, No. 28, Page 64)".

We are ready to present these views and claims in a hearing session in the Commission You chair, should that be considered necessary.

Respectfully,

Prof. as. dr. Vasilika HYSI                                         Sokol BERBERI

Executive Director                                                     Executive Director

Albanian Helsinki Committee                                   Center for Parliamentary Studies