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Reply to Recommendation | Doc. 12969 | 26 June 2012
Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations
1. The Committee of Ministers has examined
with interest Recommendation 1983 (2011) of the Parliamentary Assembly
on “Abuse of State secrecy and national security: obstacles to parliamentary
and judicial scrutiny of human rights violations”. It has transmitted
it to a number of intergovernmental bodies 
for comments, and to the European Commission
for Democracy through Law (the Venice Commission) and the Council
of Europe Human Rights Commissioner for information.
for comments, and to the European Commission
for Democracy through Law (the Venice Commission) and the Council
of Europe Human Rights Commissioner for information.2. The Parliamentary Assembly recommendation is a convincing
reminder that where the cloak of secrecy is used to cover violations
of human rights, not only have State authorities failed to live
up to their duty to protect the rights of their citizens but also
democracy and rule of law are seriously in danger. This is not
less so when extensively broad assertions of the notions of State
secrecy extend to information or data on which the public has a
legitimate interest of disclosure.
3. The Committee of Ministers has taken note of the Parliamentary
Assembly’s request that it draw up a recommendation on the notion
of State secrecy and the use to be made of it. The Committee notes
that some of the concerns of the Assembly are met in its Guidelines
on eradicating impunity for serious human rights violations, adopted
on 30 March 2011. It draws attention to the fact that these guidelines
provide, inter alia,that “States are to combat impunity
as a matter of justice for the victims” (Chapter I, paragraph 3)
and that they “are addressed to States, and cover the acts or omissions
of States, including those carried out through their agents” (Chapter
II, paragraph 2). However, the Committee of Ministers considers
that the issues raised by the Assembly are of importance and it
will continue to take them into consideration in its work.
4. With regard to the Parliamentary Assembly’s recommendation
that all member States be invited to review or, if necessary, set
up suitable and effective parliamentary and other independent mechanisms
for the oversight of the secret services, the Committee of Ministers
would again draw attention to the Guidelines on eradicating impunity
for serious human rights violations. These guidelines invite States
to “consider establishing non-judicial mechanisms, such as parliamentary
or other public inquiries, ombudspersons, independent commissions
and mediation, as useful complementary procedures to the domestic
judicial remedies guaranteed under the Convention” (Chapter XV) and suggest that
they “should also establish mechanisms to ensure the integrity and
accountability of their agents” (Chapter III, paragraph 7).
(Chapter XV) and suggest that
they “should also establish mechanisms to ensure the integrity and
accountability of their agents” (Chapter III, paragraph 7). 5. Furthermore, in line with the Assembly’s recommendation, the
Committee of Ministers invites member States to review, where necessary,
criminal and civil justice procedures aimed at facilitating the
establishment of special procedures in the criminal and civil courts
to permit proper conduct of proceedings involving the handling of
information of a sensitive nature covered by secrecy.
6. Finally, the Committee of Ministers underlines the importance
of the public’s participation in governance, which is essential
to both judicial and parliamentary scrutiny of recourse to State
secrecy. Consequently, the Committee encourages member States to
ratify the Council of Europe Convention on Access to Official Documents
(CETS No. 205), stipulating that limitations to the right of access
to public documents must be set down precisely in law, be necessary
in a democratic society and proportionate.