The Attorney General questions that the regional police are given powers like those of the CNI to classify information

However, it defends the constitutionality of the draft of the new official secrets law in front of the majority of the Fiscal Council

MADRID, 20 Feb. (EUROPA PRESS) -

The State Attorney General (FGE), Álvaro García Ortiz, assures that the drafting of the new official secrets law that allows the regional police forces to classify information could mean "an invasion of an exclusive competence of the State" by granting them new powers to have a secret regime similar to that of the National Intelligence Center (CNI) itself.

This is stated in the private vote signed by the head of the Public Ministry --along with four other prosecutors-- against the criteria of the majority of the Fiscal Council that approved the report on the preliminary draft of the Law on Classified Information, which is intended to repeal the old law on official secrets.

In the text, to which Europa Pres has had access, García Ortiz shows his opposition to the majority criteria of the advisory body and ensures that the preliminary draft promoted by the Executive "in no way incurs in violation of constitutionality or current legality, as affirmed by the report issued by the majority of the Fiscal Council".

Although the attorney general formulates certain objections to the draft to "introduce improvements in its wording", he insists that it does not raise a "global questioning of the entire pre-legislative text."

In the individual vote, García Ortiz pronounces himself regarding the section of the draft in which "classification powers" are granted to those who occupy Government Delegations and Sub-delegations, General Directorates of Police and Civil Guard, the General Secretariat of Penitentiary Institutions and the authorities competent regional authorities in police matters.

In line, it ensures that "the authorization granted to classify documents to the autonomous authorities competent in police matters (...) could suppose an invasion of an exclusive competence of the State, (...) by including classification bodies that lack competence in the areas of action provided for in the draft (security and national defense).Thus, he points out that "the suppression of the section would proceed".

In the report approved by the majority, it was said that it was "particularly excessive" that "classification powers" were granted to the autonomous police forces and it was warned that said powers could amount in practice to "providing them with some possibilities of acting in a regime secrecy similar to that of the CNI address".

Likewise, the head of the Public Ministry considers that the article that regulates the possibility of delegating the classification capacity is "contrary to transparency." In his opinion, "the multiplication of authorities with the capacity to classify exceeds the possibility of adequately controlling the criteria that support their decisions, which may result in a high level of opacity contrary to the right of access to public information."

García Ortiz also pronounces himself regarding the declassification deadlines established by the draft: "50 years for top secret, and may exceptionally and motivatedly be extended for another 15 years; 40 years for secret, and may exceptionally and motivatedly be extended for 10 years more; between 7 and 10 years for non-extendable confidential information; and between 4 and 6 years for non-extendable restricted information".

As stated in the dissenting opinion, the attorney general considers the first two assumptions "clearly excessive". And he proposes terms of 25 years for the automatic declassification of the top secret and 10 years for the confidential one.

In addition, the number one of the Prosecutor's Office understands that "there is no doubt regarding the automatic application of the deadlines established in relation to the classifications made after the entry into force" of the preliminary draft, but stresses that "in cases in which the information it was already classified before" said entry into force "the regulation is imprecise".

In this sense, it stresses that "neither the criteria regarding the initial term that governs their classification (...) nor what are the terms applicable to them after their entry into force (...) are regulated on this point (... ) nor does it provide for the possibility of any appeal to judicially control the classifying document".

Within the framework of the individual vote, it refers in turn to the sanctions established in article 42 of the draft for those who fail to comply with the law. For García Ortiz they are amounts "excessively high, since they start from 50,000 to 3,000,000 euros and can cause the 'chilling effect', that is, there is a risk that the penalties imposed by the national authority are capable of discouraging the exercise of fundamental rights".

Regarding the section that regulates judicial control and access procedures, he criticizes that the form and scope of the intervention of the Prosecutor's Office is not specified. "It must be detailed," he says

And with respect to the fourth final provision, which establishes that the entry into force of the law will be 6 months from its publication in the Official State Gazette, the attorney general assures that "a higher forecast of time should be established for the supposed that the content of this preliminary draft could not have been developed according to the regulations on the scheduled date".

García Ortiz signed the dissenting vote against the report approved by the Fiscal Council, which also warned that the new law on official secrets "makes possible the imbalance of a real direct impact on the security and defense of the State" and allows "a flow of confusion and an enormous secrecy inappropriate to a system such as the one proclaimed in article 1 of the Constitution, all of which contributes to hinder effective judicial control".

On the sidelines, it was also noted that "the bill does not meet the standards set by the jurisprudence of the European Court of Human Rights (ECHR) on the right of access to public information and its guarantee within the framework of the Convention for the Protection of Human Rights Humans".

The Fiscal Council disliked that the text limited itself to repealing the law on official secrets of 1968 "without addressing or specifying coordination rules or clarification of possible inconsistencies, inconsistencies, collisions and contradictions with the law on transparency, access to public information and good government".