Point of view of the Public Ministry on the amending legislation proposed of Law 544/2001 regarding free access to public information

Based on the analysis of the Communitary provisions, on the European Court of Human Rights jurisprudence, on the compliance of the current provisions of national law governing the public information domain,

It follows that the rules of legislative technique provide the need to respect as a whole the general principles of the systemic fundaments, according to which the amendment of some legislation must be done in such a way that, any change in the text of the law must be in compliance with the other national internal laws and with the communitary acquis.

Referring only to the project proposed for amendment, which covers two items of law that are concerned: article 12, lit. f, respectively completing article 12 letter. f through the text referred to in the letter. f ¹.

"The information in criminal cases being in the investigation stage or pending in the courts, are not part of the public information and can not be made public until a final sentence is given";

The analysis of the proposed text as a supplement to the article that lists the categories of information exempted from public notice, that might lead to contradictions with other provisions provided in the national and Communitary legislation. Thus, through this option for modification, namely the addition of text information law which defines the exempted information categories, it would extend this type of information exempted by means of a law, although the principle of constitutional law and principles enshrined in the EU Convention do not provide for this exception.

Thus, art. 31 of the Constitution entitled Right to information, provides:
"(1) A person's right to have access to any information of public interest can not be restricted."

"(2) Public authorities, according to their competence, are compelled to provide correct information to citizens in public affairs and matters of personal interest."

This is perceived as the fundamental law of international legal instruments in this area and had in particular to consider the compliance with Article 10 - Freedom of expression in the European Convention on Human Rights, which states that:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference of the public authority and regardless of frontiers. This Article shall not prevent States from requiring prior authorization of broadcasting, television or cinema.

2. The exercise of these freedoms, that carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interest of the national security, territorial integrity or public safety, for the prevention of disorder or crime for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of confidential information or for maintaining the authority and impartiality of the judiciary.”

The constant European Court jurisprudence confirms the obligation of States to ensure the public nature of court proceedings on procedural measures ordered during the trial (13.11.2007, case Bocellani and Rizza v. Italy). However, the European Court ruled that offering the document instituting the press is not a violation of the presumption of innocence of the defendant (05/07/2005 Case Pandy v. Belgium).

The General Assembly of UNO in 1946 noted that "freedom of information is a fundamental human right and touchstone of all freedoms to which the United Nations are faithful."

Romanian legislator joined by Law no. 544 / 2001of the international legal instruments and guaranteed by the fundamental law of the state itself, the right to information, ranking it among the fundamental rights.

Therefore, the proposed amendment would amount to giving up the assumption that relied the law decreed that controls the access to any natural or legal persons to public information, with emphasis on the principle of transparency in decision-making for each public authority or institution of the state.

Basically, the paradigm of adopting Law no. 544/2001 regarding free access to public information, which aimed both to provide how that may be required and provided the public information as well as the manner in which to organize information specialized compartments of public authorities or the public relations, to ensure access to anyone and to the media representatives to such data, would change by exclusion of information on judicial proceedings throughout the prosecution and throughout the trial, a ruling until the final court and also could lead to sanctions of unconstitutionality, in relation to art. 31 of the Constitution.

If the current wording of art. 12 of the law are provided and listed cases exempted from free access of citizens to a range of information, such as those contained in paragraphs e) and f) which reads:
e) information on the proceedings during criminal or disciplinary investigation, if it jeopardizes the outcome of the investigation reveals confidential sources or to endanger the life, physical integrity, a person's health proceeding the investigation or during the progress of the investigation;

f) information on legal proceedings, if advertising them is detrimental to ensuring a fair trial or legitimate interest of any party involved in the process;

The limit proposed would add a new category of exceptions to public information that would differ the constitutional right to information
and Communitary rules, in particular those contained in Recommendation 13 (2003) of the Committee of Ministers to provide information through the media in connection with criminal proceedings.

Thus, from the principles stated in the appendix to Recommendation 13, which includes a serial that embeds exactly correlative rights and obligations of judicial authority and the media in terms of circulation and transmission of data to ensure the right to public information.

Principle 1 - "Informing the public through the media" provides: "The public must be able to receive information about the activities of the judicial authorities and of the police through the media. To do this, journalists must be able to report and comment freely about the functioning of the criminal justice system that is subject only to limits given by the following principles, "referring primarily to Principle 2 - the presumption of innocence and that in principle 3 - accuracy of the information. Through these principles, the obligations incumbent upon judicial authorities to provide the media only verified information and based on reasonable assumptions, and if criminal proceedings are in progress, information must be communicated and disseminated through the media if it does not prejudice the presumption of innocence of the suspect or accused.

It is basically set by these principles to the judicial authorities the obligation to determine the timing and content of information transmitted to the media representatives in criminal cases pending, that in our case, during prosecution, in full accordance with the right of the public opinion to access  information of public interest in the area of justice.

However, these principles must be linked in public communication activities through the press made by the legal principle 5 – The modality of providing information to the media and that, Principle 6 - Regular information during the process, providing the means by which such information is provided by the media (press releases, press conferences etc.) and the obligation of these authorities to inform the media in criminal cases with significant impact on
public, with key issues, as long as this does not prejudice the smooth operation of the criminal investigation.

Currently, the provisions of art. 12 letter. e) and f) of Law 544/2001 on free access to public information, are consistent with the principles set out.

Given the above, it results that even adding a new paragraph, respectively 4, in the content of art. 21 is not justified, since it is closely correlated with the art. 12 letter. f¹ for which we cited the reasons why we appreciate that it must be adopted by the draft amendment of Law 544/2001 subject to this analysis.

Thus, art. 21 paragraph 4 provides:

"For the disclosure or providing the information voluntarily or involuntarily of the kind contained in the chapter II, Section 1, Art. 12, the head unit is disciplinary sanctioned, " generates contradiction with other provisions of the current national legislation. In addition, including New Criminal Code stipulates that crimes harmed the protected categories of values. This provision is supported by the provisions of Law no. 544/2001 governing the procedure where it was established the disciplinary liability of those responsible for this activity. Thus, it means that there are provided both disciplinary and criminal means to protect public information and information exempted of such categories.