Analysis: THE WRONGFUL INVOCATION OF THE INVESTIGATIVE SECRET EXEMPTION IN ADMINISTRATIVE BODIES’ REFUSALS TO PROVIDE ACCESS TO PUBLIC INFORMATION

In the course of our communication with different public institutions regarding our requests for public information, we from the Anti-Corruption Fund (ACF) have on many occasions been refused access to reports, analyses and conclusions prepared by such institutions in the exercise of their functions. The reason — the requested documents have been sent to the Prosecutor’s Office on the initiative of the respective administrative body, or the Prosecutor’s Office itself has demanded access to the documents for the purposes of an inspection. According to the administrative bodies, this fact alone constitutes sufficient grounds to refuse access to the requested information, as it justifies the applicability of the special procedure for disclosing investigation materials under Art. 198, par. 1 of the Criminal Procedure Code (CPC), which requires the permission of the prosecutor in charge. The administrative bodies maintain that this specific provision prevails over the general rules under the Access to Public Information Act (APIA), referring to the wording of Art. 37, par. 1, item 1 of the APIA. In consequence, the information is either refused, or withheld until the permission of the relevant prosecutor is obtained.

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Абонирайте се за информационния бюлетин на АКФ, за да научавате за най-новите ни разследвания и анализи:

С натискане на бутона потвърждавате, че сте запознати с Политиката ни за поверителност

In the following lines we will present our arguments for considering the mentioned practice of the administrative bodies in violation of the law.

  1. What is an investigative secret and whose interests it protects

Pre-trial investigative proceedings in cases involving crimes prosecuted by the State (as opposed to by the victim) are conducted in order to collect evidence, necessary for establishing the objective truth with respect to the circumstances relevant to the case, and subsequently decide whether to bring a person to court or suspend/terminate the investigation. Pre-trial proceedings are not public, unlike the proceedings at the trial phase (where the open court principle applies), as this ensures the protection of:

– the public interest in not preventing the ascertainment of all relevant facts on the case, or the eventual punishment of the perpetrators;

– the personal interest of the investigated parties (and often of the victims) in not disclosing information before the relevant facts have been ascertained by the investigative authorities.

The prohibition to disclose information about ongoing investigations is not absolute. Given that the prosecutor is in charge of the pre-trial proceedings, Art. 198, par. 1 of the CPC entrusts precisely this figure with the responsibility to issue permissions to disclose investigation materials in the cases where it can be concluded that the public interest in obtaining information about specific facts surrounding the investigation prevails (for instance, for reasons of protecting public security  or seeking assistance from the public).[1]

However, the prosecutor’s assessment under the CPC is not subject to any external procedural control.

The phrase “investigation materials” in par. 1 of Art. 198 is not entirely clear; it may refer to all the materials connected to the pre-trial proceedings or only to those related to the collected evidence, but insofar as par. 2 mentions the phrase “case materials,” it is probably more accurate to adopt the broader interpretation.

  1. What is the scope of application of the investigative secret

There can be no doubt that the investigative secret concept applies only to the pre-trial phase of proceedings; this is evident from the literal interpretation of the wording of Art. 198 of the CPC, as well as of its systematic place in the law code.

Pre-trial proceedings are instigated with an explicit order of the prosecutor to this effect, or — when time is of the essence — with the first investigative action undertaken on the case, or upon witnessing the commission of an overt criminal act. The proceedings end with the prosecutor’s actions following the completion of the investigation, whereby the prosecutor decides the outcome of the pre-trial phase.

The investigative secret concept does not apply if pre-trial proceedings have not been initiated, as in that case there is no investigation to be kept secret.

The preliminary inspection that a prosecutor can conduct, or assign to another public body to conduct, in order to collect sufficient evidence that a crime has been committed and instigate pre-trial proceedings (marking the beginning of the investigation), is not regulated by the CPC, but by Art. 145 of the Judiciary Act (JA). The preliminary inspection, whose purpose is to collect sufficient evidence that a crime has been committed, is not a procedural action and is consequently not governed by the provisions of the CPC. For instance, the limitation periods are different from the ones applying to criminal investigations; any persons giving testimonies do not have the legal status of a witness, so they do not possess the rights and obligations of witnesses under the CPC and cannot be held liable for perjury within the course of the preliminary inspection; any performed actions have no procedural effect in the subsequent criminal trial, etc.

Since preliminary inspections are not governed by the CPC provisions, it is unreasonable to maintain that Art. 198 of the CPC should apply with respect to materials collected in the course of such inspections. Such a conclusion cannot be reached even through broad interpretation of the law or through applying legal rules per analogiam, as this would lead to unjustified restriction of the public’s right of access to information.

The above observations are even more valid with regards to prosecutorial inspections under the JA, which are commissioned or conducted in accordance with the prosecutor’s constitutional power to trigger proceedings for repealing unlawful administrative acts. As in the case above, there is no legal basis to conclude that Art. 198 of the CPC should apply to such inspections; moreover, such a conclusion would be illogical, as these inspections relate to matters of administrative, not criminal, law.

Once a case has reached trial, the “open court” principle applies — as a rule, the proceedings take place during a public hearing, and the case materials are examined not only in the presence of the parties, but also in the presence of any other stakeholders. Of course, there are exceptions to this rule, but it is the judge, not the prosecutor, who decides whether exceptional circumstances are in place.

III. The conflicting case-law on the matter at hand

In a number of judgments of the Supreme Administrative Court (SAC), especially older ones, it is held that “the procedure for providing information that has been collected, created and stored in the course of the investigation and the preliminary inspection on a particular criminal case, regardless of how far the case has progressed in the pre-trial phase of the proceedings, is the procedure under Art. 198, par. 1 of the CPC”.[2]

It is probably these judgments that administrative bodies rely on to refuse access to any materials in their possession that have been incorporated in a prosecution case file. However, it should also be noted that the cited court judgments mention “investigation” and “preliminary inspection” on the one hand, and “pre-trial phase of the proceedings” on the other; thus, it can be concluded that the court referred to materials that were collected during a preliminary inspection on a case, in connection with which criminal proceedings were subsequently instigated. Consequently, upon receipt of the request for public information, the case is already at the pre-trial investigation phase, which justifies the application of CPC to the requested information.

At the same time, there is case-law of the SAC[3] explicitly stating that Art. 198 of the CPC only applies to cases where pre-trial proceedings have been instigated. Thus, irrespective of whether a particular inspection has been conducted on the initiative of an administrative body or by order of a prosecutor, the SAC has held that such a preliminary inspection cannot be equated with a launched criminal investigation. Consequently, the provision of any materials collected in the course of such an inspection should not be regulated by the CPC.

  1. In conclusion

The mere existence of a prosecution case file on a particular case cannot be used by administrative bodies as justification for automatically refusing to provide requested public information and forwarding any subsequent questions in this regard to the Prosecutor’s Office.

The APIA explicitly lays down the principle that administrative bodies are obliged to provide citizens and civil society organizations with access to requested public information. The grounds for refusing access have to be carefully examined by the respective administrative body, and the applicability of Art. 198, par. 1 of the CPC should not be decided on the basis of a statement by a prosecutor, who demanded access to certain materials from the administrative body and decided to restrict their publication. The administrative body should itself assess: 1) whether pre-trial criminal proceedings have been instigated, and: 2) whether the information requested under the APIA has been incorporated into the case materials related to that pre-trial investigation. If any of the two conditions is not fulfilled, there is no reason for the administrative body to refer the matter to the Prosecutor’s Office. Instead, it should simply grant access to the requested information, as long as there are no other legal impediments in force.

 

[1] The Supreme Court of Cassation (SCtC) is also expected to issue an interpretative judgement on the application of Art. 198 of the CPC; the case was brought by the Supreme Bar Council in response to the increasing instances of information disclosure by the Prosecutor’s Office

[2] See for instance Judgment No. 17404 of 21 December 2013 of the SAC on adm. case No. 7138/2013, Judgment No. 15920 of 29 November 2013 of the SAC on adm. case No. 9826/2013, Judgment No. 2496 of 20 February 2014 of the SAC on admin. case No. 11832/2013.

[3] See for instance Judgment No. 3167 of 21 March 2016 of the SAC on admin. case No. 11063/2015.

 


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