ARM-2012-1-001

a) Armenia /b) Constitutional Court /c) /d) 06.03.2012 /e) On the conformity with the Constitution of the provisions of the RA Law on State and Official Secret /g) Tegekaguir (Official Gazette) /h).

Keywords of the systematic thesaurus:

Constitutional justice – The subject of review – Legislative provisions.

Institutions – State, Executive bodies

Fundamental Rights – Civil rights – Right to freedom of expression (Right to freedom of information)

Fundamental Rights – Civil rights – Limits to the right to freedom of information

Keywords of the alphabetical index:

Right to freedom of information, state and official secret, limits to the right to freedom of information, powers of the executive bodies.

Headnotes:

The right to freedom of expression includes, inter alia, the right to search and receive information. The accessibility of the public information is a vital prerequisite for democracy and for transparency of the state government accountable before the public. Simultaneously this constitutional right is not absolute and is subject to restrictions under the Constitution. The correlation of this constitutional value with other constitutional values, particularly with the state security, defines the nature of its possible restrictions. Meanwhile, the legal ground for the limitation to the respective freedom shall satisfy the requirements of accessibility and preventability.    

Summary:

The Applicant stated that the challenged provisions of the RA Law on State and Official Secret permit the relations of defining the information as a state or official secret to be regulated by departmental acts of executive bodies. The challenged provisions authorize the executive bodies to compose and confirm the extended departmental lists of the information subject to secrecy. The mentioned departmental lists are also secret and may not be published, thus the secret information is defined by a legal act which is also secret. The applicant claimed that as a result of such regulation the certain sphere of the public bodies stay beyond the civil supervision which contradicts the principles of rule of law and democratic society.

For solution of the constitutional debate the Constitutional Court emphasized the importance of the following legal issues:

a)whether the realization of the power of the executive bodies to define the information as a state or official secret presumes a limitation to the freedom of information and whether the departmental lists of the information subject to secrecy are, per se, limitation to this freedom,

b)whether the secrecy and non public nature of the extended departmental lists of the information subject to secrecy are legitimate.

     Based on the systemic analysis of the respective legislation, the Constitutional Court held that the RA Law on State and Official Secret precisely defines the notion “state secret”. The Law sets down the scope of the information which shall be defined as a state secret. The Law also stipulates the principles of defining the information as a state secret. All these regulations enable to define the frames of limitation to the freedom of information. Based on the aforementioned the Constitutional Court considered that the realization of the constitutional principle of limitation to the rights only by law is guaranteed, as for the sub-regulations they are endowed with the function to ensure the realization of the requirements set forth in law.

    The Law enables the government to compose the lists of the information which is defined as state secret by certain fields. These lists are ratified by the President of RA and are public. The same Law allows the executive bodies to define the information as a state secret within their powers by departmental lists. These are called extended departmental lists. The information which is to be included in these lists should be derived from the requirements of the Law. Based on this the Constitutional Court found that the detailed departmental lists of secret information composed in the manner prescribed by the Law, per se, may not limit the right to freedom of information. The limitations to the right are stipulated by the Law, and by setting down the power provided by the challenged provisions the legislature has not delegated its exclusive authority to define limitations to rights to the executive bodies, but authorizes them to realize the limitations set forth in the Law.

As for the legitimacy of non public nature of the extended departmental lists the Constitutional Court held that according to the general logic of the Law the limitations may be executed only towards the information which dissemination may hurt the state security, whilst the extended departmental lists just itemize the fields prescribed by the Law.

The Constitutional Court also stated that the secrecy of the departmental lists of the information subject to secrecy may lead to difficulties for people to predict the legal consequences of their actions, taking into account the criminal responsibilities for dissemination of state and official secret.

In connection with the nature of these lists the Constitutional Court considered just one exception, especially when the name of the certain information in the list, per se, may inevitably comprise state secret by the fact of its engagement in the list, it may be defined as an information which dissemination can lead to harmful consequences for the state security and be defined as state secret.

Based on the legal positions expressed in its decision the Constitutional Court recognized the debated provision which stipulates secret and non public nature of the extended departmental lists of the information subject to secrecy to be inconsistent with the Constitution and void, in so far as it does not refer to certain information subject to secrecy.

         Languages: Armenian, Russian, English.