Summary conclusions Regarding the Draft Law of the Kyrgyz Republic «On Protection of State Secrets of the Kyrgyz Republic» (Legal Policy Research Centre. November 2009)

Summary conclusions
Regarding the Draft Law of the Kyrgyz Republic
“On Protection of State Secrets of the Kyrgyz Republic”[1]

The draft law of the Kyrgyz Republic “On Protection of State Secrets of the Kyrgyz Republic” includes a number of principled provisions that are worthy of approval and support, particularly as they relate to the goal of insuring individuals’ rights. On the other hand, the draft suffers from very serious shortcomings. Its adoption in its current form will hardly contribute to the rule of law in the Kyrgyz Republic.

Among the positive elements, the draft law:

a)        Is limited ratione personae: it applies only to those people who are obliged not to reveal state secrets ex oficio or who “took upon themselves” such an “obligation” (Article 1). Put another way, no other citizens (including journalists, scientists, etc.) can under any circumstances be held legally accountable for revealing state secrets.

b)      Lists information that in no case may be considered state secret. Most importantly, this list includes “facts regarding the violation of rights and freedoms” and “facts regarding violations of law” (Article 13).

c)       Includes guarantees that when necessary judges and lawyers will be given access to state secrets without the need for special permission, and bans in their case the introduction of any kind of “clearance procedures” (Article 26).[2]

On the other hand, however, some provisions of the draft law are technically lacking, while others reflect a lack of understanding of contemporary legal values on the part of the bill’s drafters.

Technical Problems

Legislation on state secrets should be intended in the first instance to define the maximum extent of the classification of information ratione personae and ratione materiae, and, in the second instance, to construct a mechanism for classifying information in each of these categories, including the forms of control over groundless classification of information.

Information is classified ratione personae through the listing of those persons who may be held responsible for divulging state secrets. Information is classified ratione materiae by listing information that may not be classified under any circumstances. Thus, even those persons who in principle may be held responsible for divulging state secrets cannot be held responsible if the information they divulge is included on the list of information defined in the draft as open source by its very nature (ex natura sua). As concerns procedures for classifying information, it is clear from the logic of the functioning of the state that for the most part the agencies that are empowered to do so belong to the executive branch since they have the responsibility of protecting national security, conducting foreign intelligence, defense, etc. In this situation, the only effective form of control over their activities is parliamentary control, as the information in question is a priori classified and thus inaccessible to citizens, civic organizations and the media.

To what extent does the draft law correspond to this theoretical logic? Unfortunately, we must admit that it does not by any means do so in full measure.

First, in addition to the list of information that may not be considered state secret, the draft law inexplicably also includes a list of information that is considered state secret (Articles 7-10). In attempting to create a positive list of information that is considered state secret, the legislators sought to fulfill what is a priori an impossible task. As a result, the list of secret information includes very strange provisions. How, say, should we understand the fact that information that “reveals the substance or volume of economic cooperation with foreign governments during a particular period” (Article 9) is included in the list of secret information? Why was information on “questions of foreign policy, domestic trade, and scientific-technical communications” included in the list of state secrets if they “reveal the strategy and tactics of the foreign or domestic policy” (Article 9)? After all, they are fairly openly publicized by the head of state in various speeches, interviews, etc. So from who and why should such information be made secret? Why should information that reveals “the forces, means and methods devoted to the battle with organized crime, terrorism, religious and other forms of extremism” be classified by legislation, or information that “reveals the forces, means and methods of investigating criminal cases that involve security interests” (Article 10)? If we begin with the assumption that Kyrgyz law enforcement agencies do not employ illegal means or methods in the fight against crime (which we do not doubt), then the only real result of legislatively classifying the means and methods they employ in the fight against crime is the resurrection of the Soviet practice of publishing theoretical, methodological handbooks defining which categories of critical cases fall under the heading “secret,” as well as the resurrection of Soviet-style special “secret” dissertation committees for the defense of dissertations in which the terms “terrorism” or “organized crime” are used. There is no point in even mentioning how effective and beneficial such procedures would be.

These are simply examples that demonstrate the damaging nature of the approach adopted in the draft law and illustrate that it should not include a list of information considered to be state secret. The inclusion of such a list also creates a contradiction within the draft law. Article 6 does not give parliament the authority to create a list of information considered to be state secrets, making the list contained in Articles 7-10 completely incomprehensible. In addition, Article 18, whereby parliament is given the authority to declassify information by amending Articles 7-10, also contradicts Article 6. These contradictions should be resolved by resigning from any effort to positively regulate the reach of the law on state secrets ratione materiae.

Second, the draft law does not include any effective instruments for parliamentary control over the executive branch’s actions in classifying information. The authority of the parliament is amorphous; it is simply the “manager of budgets” and one of the “protectors of secrets” (Article 6), but not a fully empowered controller, which should be its role.

Instead of this, the draft law contains a not fully understandable norm to the effect that the correctness of a decision to declare particular information a state secret “can be appealed through the courts” (Article 11). The question arises, by whom can it be appealed bearing in mind that we are talking about secret information? It is clear that this norm is nothing more than a formality, an “excuse” by the lawmakers, with no practical applicability. It is doubtful that such a window dressing of judicial control, having no logical or theoretical basis, would provide any guarantee against potential abuse by the relevant agencies of the executive branch of their authority under the law to classify information.

Since the classification of information is primarily a political decision, control will only be effective if it too is of a political nature. The only form of such control is parliamentary control, about the possibility of which the draft law is silent. As a result, we must admit that the draft law leaves the classification process in essence without any control.

The Incompatibility of the draft Law with Several Contemporary Legal Values

The draft law also includes two provisions that are unnecessary for the creation of a legal system governing state secrets and that at the same time violate several fundamental legal values, deforming them to conform to the legal system of the Kyrgyz Republic.

First, among the list of state agencies required to ensure the protection of state secrets the draft law includes “agencies of the judicial branch” (Article 6). The draft goes on to spell out that agencies of the judicial branch are required to ensure the protection of state secrets in two cases: (a) while reviewing cases; and (b) in defining “the authority of relevant persons in ensuring the protection of state secrets in agencies of the judicial branch” (Article 6).

The first of these two cases is strictly procedural and should be regulated by procedural legislation. The procedural duty of a judge to close hearings when the case involves “secret” materials is foreseen in criminal procedural and civil procedural legislation and cannot serve as a basis for including judges in some kind of special executive branch bureaucratic system for ensuring the protection of state secrets. The second case raises even more doubts. What does “defining the authority of relevant persons in ensuring the protection of state secrets in agencies of the judicial branch” mean if, as we understand it, the same draft excludes the very possibility of dividing judges into those who have access to state secrets and those who do not? As a result, there is a risk of the resurrection de facto of the institution of “special courts” that contradicts contemporary legal values.

Clearly, the judicial branch should not be included in the list of agencies required to protect state secrets. Its function is different: to administer justice and guarantee that procedural rules set out in criminal procedural, civil procedural and other legislation are followed. The physical protection in courts of secret materials does not in its nature differ from the protection against dangerous defendants or ensuring their transportation to the courts, both of which are functions of the executive, not the judicial branch.

In sum, the current version of Article 6 creates additional, baseless grounds for bringing the judicial branch into the “bureaucratic vertical,” and levies on the judiciary unnecessary administrative-bureaucratic requirements that present a risk to the principle of the independence of the judiciary, a principle which is already quite brittle and not well ensured in the post-Soviet space.

Second, the list of types of information that the creators of the draft law list as “state secrets” includes one item that is worthy of particular note: “the results of operational-investigative activities not used in criminal trials…” (Article 10). Moreover, operational-investigative information may be declassified only if it is used in a criminal trial. In other situation it will remain state secret indefinitely and may not be declassified (Article 18).

The indefinite secret status of this type of information makes access to it impossible, and thus makes impossible any type of outside control over the legality of measures that limit individuals’ constitutional rights. In other words, control can only be exercised “within the special services,” which is particularly dangerous given the absence in the draft law of any type of effective parliamentary control over the classification of information or the activities of the secret services. As a result, the preconditions are created for the practically unlimited and uncontrolled creation of “secret dossiers” on anyone of interest to the special services.

Operational-investigative measures should always be carried out with the goal of obtaining evidence to be used in a criminal trial.[3] If operational-investigative information does not become criminal-procedural evidence it can mean only one thing: there was no basis for accusing an individual of committing a crime or, at the very least, that there was a procedural obstacle to such an indictment (expiration of the statue of limitations, death, etc.). In its judicial nature, the fact that operational-investigative information was not used in a criminal case as criminal-procedural evidence does not differ from the case of the termination of a criminal case during the preliminary investigation. But what happens under the principle of “investigative confidentiality” when a preliminary investigation is dropped? The person against whom the case was conducted has the right to acquaint himself with the materials gathered, the procedural decisions, etc. even though these materials are not available to the wider public. The same should be the case with information gathered through operational-investigative means. There is no reason that operational-investigative information should remain indefinitely secret if one assumes it was collected only in order to uncover and investigate real, dangerous crimes (the only legally acceptable goal). None of the hypothetical ideas about the importance of maintaining the secrecy of the “tactics” and “methodology” of operational-investigative measures appear serious. After all, no catastrophe results when they are revealed to the accused after indictment.

In legally developed systems the general tendency is to require the appropriate agencies to reveal to the subject of an investigation within a set period of time information on any “special” police measures employed, even when no indictment was issued. It is exactly at this moment that the degree of legality and the basis for the operational-investigative measures is revealed and the basis laid for any complaints. This provides the maximum possible guarantee of individual rights and compensation in cases of their having been unnecessarily abridged as a result of “special operations” and, in the final analysis, ensures we do not slide down to the level of a totalitarian police state.

The draft law should be amended so as either to completely drop reference to questions related to operational-investigative measures or to include a time limit on the classified nature of operational-investigative information not used in criminal cases and procedures.

Legal Policy Research Centre November 2009

[1] This analytical note was prepared by the Legal Policy Research Centre with the support of the Freedom House. The author of this document is L.V. Golovko, Doctor of Law, Professor of the Department of Criminal Procedure, Justice and Prosecutorial Oversight of the Faculty of Law of the M.V. Lomonosov Moscow State University, member of Advisory Council of the Legal Policy Research Centre.

[2] In this manner the draft law rules out the possible creation in the Kyrgyz Republic of Soviet-style categories of “special judges” and “special lawyers” that divided judges and lawyers into those who have access to state secrets and those who do not.    This provision of the draft law is particularly worthy of praise given that in several other post-Soviet states there has been a legal and/or de facto return to the Soviet practice.

[3] It is for this reason that in Western jurisprudence there is no concept of “operational-investigative measures,” as they are completely integrated into the fabric of the criminal process.