Constitutional Court
15 May 2007
Facts
The case was initiated by the Vilnius Regional Administrative Court, which asked to examine whether the provisions of the Law on Administrative Proceedings and the Law on State and Official Secrets are in line with the Constitution, the constitutional principles of justice and the rule of law.
Complaint
The applicant's claims were based on the fact that, according to the Law on Administrative Procedure, factual data constituting a State secret or an official secret may not, as a general rule, be admitted as evidence in an administrative case until they have been declassified. It is not clear from the Law when information constituting a such secret may be admitted as evidence in a case: in some cases such evidence may be relied upon in favour of or against a person, even though the information in question has not been declassified, and in other cases it may not be.
The applicant pointed out that, according to the Law on State and Official Secrets, a decision to revoke an authorisation to work or to have access to information constituting a secret may be appealed to the Coordination Commission for the Protection of Secrets, which takes the final decision. Thus, no other authority, including a court, is allowed to assess the validity of that decision. The provisions of the Law do not, without exception, allow a person who does not have a permit to have access to classified information, even if that person's administrative proceedings are pending before a court and the evidence in the case admits and assesses the information constituting a secret. This puts a person in an unequal position compared to another party to the dispute.
Cort’s ruling
A State secret is sensitive, non-public information, the disclosure of which could cause damage to the State, to the political organisation of society as a whole, the purpose of which is to safeguard human rights and freedoms, and to safeguard the public interest.
Under the Constitution, the State is obliged to guarantee not only the secrecy of information which constitutes a State secret, but also the secrecy of certain other information, namely, that there shall be no arbitrary, unlawful attempt to learn or disseminate such information, the disclosure of which could cause damage to the values enshrined in the Constitution, defended and protected by it.
The constitutional principle of a public hearing is not absolute, and it may also be held in private if a State secret may be disclosed.
Taking into account that, on one hand, the need to protect information constituting a State secret (or other classified information) is in the public interest and, on the other hand, the right of a person to legal defence must be guaranteed, the law must establish the grounds, procedure and conditions for dealing with information constituting a State secret (or other classified information), if the court decides that such information may be used as evidence in the case, as well as the legal regulation of the relevant proceedings in such a way as to ensure compliance with the constitutional principle of proportionality and to strike a balance between the protection of the state secret (or other classified information) as a public interest, and the individual's rights and freedoms which he or she is defending in court. The legal framework must be such that the court is able to administer justice without undermining either of these values.
The right of a party to request that information which constitutes a State secret (or other classified information) be admitted as evidence in a particular case does not in itself imply that the court has to grant such a request, and therefore that the party has to be informed of the information which constitutes a State secret (or other classified information); whether certain information which constitutes a State secret (or other classified information) may be admitted as evidence in a particular case depends on a number of factors which the court must take into account. If evidence which is not State secret (or other classified) information is sufficient for the court to give a decision in a case before it and to ensure justice, that undisclosed information shall not, in the public interest, be admissible as evidence in the case and shall not be communicated to the parties.
The Court stressed that no court decision can be based on information which is not known to the parties (one of them) solely because it constitutes a State secret (or other classified information). Court decisions that certain information constituting a state secret (or other classified information) is not admissible as evidence in the case in question may be appealed in accordance with the procedure established by law. Accordingly, the Court found no unconstitutionality.