It should be stated that knowledge of the law frequently creates additional difficulties. Thus, there is sometimes an occasional text of a law or decree, and you, governed by legal logic, get at analyzing the document. The point is that the profession merges with the life and turns into temper. Disengagement from everyday worries makes you wonder, even saturate in "filtered" issues... Then you sink into stress situation, feel nervous, face numerous collisions, illegal approach and illegitimate alignments. It is common to find.
News feed has informed the other day that President of Azerbaijan issued a decree on making amendments to Article 16 of the Law of the Azerbaijani Republic "On National Archive Fund".[1] When I read the decree, I tried to find amendments in Article 16. What I found [2] proved to be a text that irritates only.
The text is as follows:
"Application of archival documents providing state secrets is allowed after the lapse of 10 years; providing strictly confidential information on the expiry of 20 years; critical information on the expiry of 30 years; information irrespective of its confidentiality affording opportunity to determine position of a person in bodies responsible for intelligence, counter-intelligence, search operations or persons collaborating with these bodies on a confidential basis on the expiry of 75 years since their securing. These time limits may be extended by the decision of an appropriate body of executive power".
For those unrelated to jurisprudence this document instrumental for government action may be acceptable. However, it is obscure for a lawyer without appropriate filtration.
The first part of Article is self-explanatory. The point is that state secrets in line with confidentiality label are classified: confidential for 10 years; strictly confidential for 20 years and critical information for 30 years; access to appropriate archival documents may also be limited. This is normal and legal. Illegal and inexplicable is the last part of Article:
..information irrespective of its confidentiality affording opportunity to determine position of a person in bodies responsible for intelligence, counter-intelligence, search operations or persons collaborating with these bodies on a confidential basis on the expiry of 75 years since their securing. These time limits may be extended by the decision of an appropriate body of executive power"
What"s contradiction or unsoundness?
A closer look at this part of Article reveals two different aspects. In considering that they are divided by a word "or", information contained in both parts of the sentence will be kept as state secret within 75 years or not limited in time.
1. "position of a person in bodies responsible for intelligence, counter-intelligence, search operations";
2. "collaborating with these bodies on a confidential basis"
In both cases, insight into archival information that permits to identify these personalities will be allowed on the expiry of 75 years. This is not the whole story. These time limits may be extended indefinitely at the discretion of an appropriate body of executive power - Inter-departmental commission for protection of state secrets under President of Azerbaijan[3].
At the same time, still listed as a member of the acting competent commission of the Ministry of Justice is late Minister of Defense Industry Yaver Jamalov who died on June 23, 2018, and former Minister of Environment of Natural Resources Huseyngulu Bagirov dismissed on April 23, 2018.
1. The legislative body considers, according to inexplicable logic, the state secret as "...position of a person in bodies responsible for intelligence, counter-intelligence and search operations...". Such an approach is illegal regulation to create serious problems contrary to the law and the philosophy of the law. Legal literacy of those suggesting and drafting this amendment to Article 16 is doubtful (if not deliberation). In other words, this part must immediately be withdrawn from the legislation for it is contrary to scores of current rules and causes great problems.
a. Sectoral law on protection of state secret is the Law of the Azerbaijani Republic "On State Secret"[4]. Article 5.4.2 of the Law stipulates as confidential information the data on those having collaborated or collaborating with intelligence, counter-intelligence and search bodies on the basis of confidentiality...". As follows from Article, position of as person in intelligence, counter-intelligence and search bodies cannot be a secret.
b. Besides, Article 6.3 of the Law of the Azerbaijani Republic "On State Secret" admits legality of assignment to the state secret and classification of information in accordance with clauses of Articles 5 and 7 of this Law and the legislation of the Azerbaijani Republic on state secret. Note that Article 6.3 of the Law of the Azerbaijani Republic "On State Secret" considers illegal and groundless Amendment "On National Archive Fund" to Article 16 of the law of Azerbaijan.
c. In addition, assignment of a person to a position grants him certain privileges. Note that privileges granted to persons engaged in intelligence, counter-intelligence and search operations are invalidated for other citizens. Article 7 of the Law of the Azerbaijani Republic "On State Secret" lists information unrelated to confidential and not classified. Article 7.0.3 of the same Law says that information about privileges and rewards granted by the state to citizen, functionaries, enterprises and organizations cannot be regarded as state secret and secret information.
d. One of the most tragicomic aspects is that with this rule"s coming into effect President is regarded among those divulging state secrets, since exactly President appoints, awards various persons; decides who and where will be employed, collaborate with a structure, etc. For example, under Presidential decree Orkhan Sultanov was appointed a head of the Foreign Intelligence Service of the Azerbaijani Republic[5].
It was this decree that we got to know that Orkhan Sultanov is a secret agent. Or when he[6] or his collaborators were awarded, we made certain that they are agents of special services[7]. Spreading of these decrees and resolutions is a requirement of the Constitution of the Azerbaijani Republic and the Constitutional Law on Normative Legal Acts. I lay an emphasis on this fact, since it is illogical and illegal to ban an access to information for 75 years without a confidential basis that somebody is an agent of a body which, in turn, contrary to the Constitution, specifically Article 149. II which specifies that "Laws cannot contravene the Constitution".
2. "...or collaborating on the basis of confidentiality with these bodies responsible for intelligence, counter-intelligence and search operations ..."
There are some problems in this part as well.
a. Yes, if a man collaborates with bodies of intelligence, counter-intelligence and search operation on a confidential basis, took part in some operations and performed special tasks, these operative data and personal confidentiality are to be secured. There are no problems. However, the question is about information relating not to private but business life of a person as a secret of his personal life. If information about a person"s involvement in any operation or collaboration becomes known, it may be declassified in 10, 20 or 30 years, so emphasis on the activity unrelated to man"s personal life and its classifying as a secret of private life as distinct from a state secret and keeping it for 75 or even indefinitely is wrong from legal standpoint. This is none other than confusion of state secret with functions of private life and information about personal life.
b. Article 32 of the Constitution of the Azerbaijani Republic secures the right to personal immunity[8]. A clause 2 of Article says that "II. Every man has the right to keep secret of private and family life", i. e. Personal immunity extends to private and family life.
c. Article 38 of the Law of the Azerbaijani Republic "On Access to Information"[9] regulates access to personal recordings and data limits. Article 38.2 recites personal life and specific limits. Note that collaboration of man and state bodies is not within facts of personal life. In turn, Article 38.3 of the Law specifies legal bounds of family life and access restrictions. This aspect is left untouched, and it is natural especially as collaboration between a person and a state body on confidential basis is carried out in the interests of the state, and an emphasis here is laid on the fact that state secrets and their time limits cannot be revealed and stepped over bounds and archival life..
d. Article 40.2 of the Law of the Azerbaijani Republic "On Access to Information" fixes time limits of access to personal recordings as set forth in Article 38. Thus, 75-years of secret time limit cannot go beyond Article 38 limits.
In conclusion, an amendment to Article 16 of the Law of the Azerbaijani Republic "On National Archive Fund" adopted by Milli Majlis on February 1, 2019 and signed by President on March 13, 2019 is contrary to the Azerbaijani legislation - Constitution, Constitutional Law "On Regulatory Acts", as well as requirements as set forth in "On State Secret", "On Access to Information", "On Personal Records" regulating relations in the field. It is important that lawyers of the Presidential administration should draft a new proposal and send it to the Parliament in an attempt to remove contradictions and define specific time and volume restrictions as stipulated for state secrets.
[1] A decree of President of the Azerbaijani Republic "On Application of the Law №1480 dated February 1, 2019 "On Making Amendments to the "Law of National Archive Fund" of the Azerbaijani Republic, https://president.az/articles/32370
[2] The Law of the Azerbaijani Republic "On Making Amendments to the Law "On National Archive Fund" of the Azerbaijani Republic dated February 1, 2019. Enacted on March 13, 2019l. https://president.az/articles/32369
[3] http://e-qanun.az/framework/5245
[4] http://e-qanun.az/framework/5526
[5] http://e-qanun.az/framework/31605
[6]http://e-qanun.az/framework/38295
[7] http://e-qanun.az/framework/12912
[8] http://e-qanun.az/framework/897
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