KLOTILDA BUSHKA's speech at the International Seminar: "The use of secret police files for teaching the history of totalitarian regimes, as part of education for democracy in school."
Good afternoon everyone, representatives of public authorities, especially the Ministry of Education, the Authority on Information on Former State Security Files, representatives of the Council of Europe and the Parliamentary Assembly of the Council of Europe, friends and guests, and people passionate and dedicated to the topic on which this event has been organized today.
I have been very close to this topic for years, believing that if we uncover the truth and understand history as it was in the past, it will be much easier to realize the future that everyone wants. Forgetting the past means repeating the same mistakes. I will move on to another topic related to the specific issue we are discussing, because I would like to inform you about a draft resolution that will soon be adopted in the Parliamentary Assembly of the Council of Europe. This draft resolution deals with the right to freedom of information and ensuring access to historical documents. A resolution that will have a wide spectrum of action, in all member states of the Council of Europe, but not only that.
In the framework of this draft resolution, preparatory work has been done, by me as rapporteur but also by the staff of the Parliamentary Assembly of the Council of Europe, in understanding the situation of where Europe is in guaranteeing the right to information in historical documents. When we say historical documents, we also include documents of authoritarian regimes, or secret documents of services, which in the times of authoritarian regimes or monocratic regimes, acted contrary to the principles of protecting human rights and violated every kind of principle that today in democracy is the basis and essence of the well-functioning of the state. The right of access to information is protected under Article 10 of the European Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights.
The right to information means the right to seek, receive and impart information. This is a universal right as provided for in Article 19 of the Universal Declaration of Human Rights. This right must be recognized by every state, especially when it comes to information held by the state. We are talking about those documents that are in state archives. And there is an added obligation for states to guarantee access to these documents even if they have been classified or secret.
Recently, the Albanian Parliament and in Albania, all documents and files of the former State Security have been completely declassified by law. From a work process that required that classified files, that is, those containing classified information, be declassified step by step, with the legal changes today, the Authority and other public institutions operate on the principle that all files are open to the public, but they only carry out the activity to understand if there are conditions for not making them public and these conditions are related to the protection of National Security or the violation of human rights. This is also in fact an element that is recognized by international standards on these issues. In fact, in the draft resolution of the Parliamentary Assembly of the Council of Europe, where I was the rapporteur on the issue, we have requested that this right, this reason to protect National Security, or even to protect the human rights of others, should not be used indiscriminately, but should be used only in strict situations. Because the right to information on these documents will have to be an overriding interest. Having said that, I will have to continue with what we have done in the Parliamentary Assembly of the Council of Europe, which will have an effect and scope throughout Europe, but in fact also from those countries that are not members of the Council of Europe, but have the commitment and interest to implement the best human rights standards on this issue.
Despite the recent developments, in fact, that I explained to you what has happened in Albania with the legal changes, the same thing has happened in some Council of Europe countries, which have had a pro-active approach to opening up as much information as possible, and the European Court of Human Rights has actually maintained a conservative stance. Despite the recent developments of a potentially broader implementation of this right in Strasbourg, the stance remains the same and the stance is that when reports on access to information and National Security are adopted.
As I have said, the rule on the right of access to information should be the overriding interest. Legitimate restrictions on this right, on grounds of national security and the protection of privacy, should remain an exception. This is particularly the case when the information sought is of such high public interest, as historical documents. There should also be strict guidelines on the applicability of exceptions. This means that all Council of Europe member states, and those that choose to apply this kind of standard, must provide justifications for why access to certain historical documents is restricted. It is the duty of the state, and the burden of the state, to prove why the restrictions are legitimate, subject to strict tests of necessity and proportionality. Oversight structures must justify this, but they must also argue for it, and they must report on this issue. Also, all supervisory structures will have to focus their work by establishing in each country, independent authorities that verify how states guarantee these rights to information and how in accordance with the standards, with the principle of necessity and proportionality, the restriction is applied in relation to this right. A key principle is that of the pro-active publication of information. Member States have the obligation to make historical documents public and accessible, avoiding bureaucratic processes for registration and submission of requests. It often happens that it becomes so procedurally difficult to request information, to make several requests, to receive it, that those who have an interest in studying these issues give up.
And this is the duty of the state, to create easy conditions, for simple access and not to hinder the realization of the right with procedures. So, we should not use the procedure to stifle the essence of the mechanism, for which the conventions and the law have specifically provided. Pro-active publication also includes informing the public about historical documents through the press, social media and other media.
I have called in this draft resolution for the digitization of archives. This goes hand in hand with the last key principle that I would like to emphasize, which is a reasonable cost of access to information. Simply put, those who seek access to historical documents should not be burdened with high fees. Digitization makes this possible. It not only helps transparency, reducing bureaucratic barriers, but also facilitates the reduction of costs for the services required in this regard.
What is important to emphasize is that the supervisory authorities should have as a priority, to include the review of the executive's decisions to conceal information. If the information is not made public, is withheld with arguments of the National Security test and those arguments are not grounded, the supervisory authorities should have mechanisms in hand to review these decisions, because if we are to have a consolidated practice of reviewing these decisions and the issue of transparency will be more feasible. If there are no decisions that are coercive and mandatory by the supervisory authorities and if a consolidated practice is not created, what will happen is that under the justification of those reasons, which legitimize the keeping of information non-public, it will harm what is the public interest, access to the real truth.
In preparing the draft report and the draft resolution that is expected to be adopted soon at the Parliamentary Assembly of the Council of Europe in March 2024, a colossal amount of work has been done, not only with workshops, seminars, and brainstorming with historians, deputies who have been dealing with this issue for years, with rapporteurs of the Parliamentary Assembly of the Council of Europe, who have held leadership positions and have been the drafters of previous resolutions on the same issue, with titular representatives of institutions that deal with the right to information on historical documents, Ms. Sula has also been involved, with official authorities of the Parliamentary Assembly of the Council of Europe, but also of the Council of Europe regarding history, the study of history, its use in the educational system, its use in the public administrative life of each country and the reasons for giving value to these activities.
So, if we have this information, what do we use it for? We use it precisely to teach the new generation, we use it for the purpose of drafting policies and where we will have to base ourselves on past histories, which have been condemned models or good models. We may also have good models that we should not lose, but we will also have to unmask the wrong models, to show them to the generations, to use them in our daily work, because we risk if we do not do this, repeating bad history.
We sent a questionnaire to the parliaments of the member states of the Council of Europe, to better understand the practices of the member states and their approaches to transparency in information on historical documents. In fact, based on this information that we received from the member states, some conclusions were presented that I would like to share with you today. What I noticed is that there is a non-uniform way, there are different treatments in certain states in how they approach this issue. In the Council of Europe, there is the Tromsø Convention, it is the only international convention that explicitly ensures the right to information. There are member states of the Council of Europe that have not ratified this convention, Albania has ratified it. If this convention is approved, the responsibility of the states to have a much more transparent, open approach to the public for the right to information on historical documents increases.
Meanwhile, there are countries that are members of the Council of Europe that have signed the convention but have not ratified it, and there are even those that have been signing it for 14 years. This is seen as a challenge for the Parliamentary Assembly of the Council of Europe and the Council of Europe itself, because member states must be the first to set an example by applying the best standards. And when it comes to good standards for the right to information, as part of the corpus of human rights, there can be no more effective and experienced, and more capable, organization than the Council of Europe.
We have called on some member states to sign this convention, because there are also those that think that their legislation is in accordance with this convention. In fact, the compatibility of a convention with domestic legislation will have to be certified by a decision-making of a certain level, it cannot be simply a state position. This will also have to be done by those states that have not yet completed this process. Other member states of the Council of Europe that have signed and ratified it will definitely have to be checked, in the sense of monitoring within the limits provided for by the Parliamentary Assembly of the Council of Europe through its own mechanisms, which are the assemblies of each state, how the standards of this convention are currently being implemented.
We have observed worrying developments in the access to historical documents in practice, as is evident from the questionnaire itself and the research we have conducted. The systems and structures that are applied today in the member states do not have an effective and pluralistic supervision over the decision-making of the executive power. Now, either there are independent Authorities that deal with the handling of information and its recognition for the public, or they are bodies of the executive power. When they are bodies of the executive power, the questionnaires have shown us that there has been no effective realization of rights. Therefore, what is suggested is to increase the supervision of the executive power that deals with the handling of such issues.
Secondly, we think that this role should be played by the courts and independent institutions. So, if the member states do not have them, they should use the best model of making effective the mechanisms that the convention recognizes, the mechanisms that recognize the resolutions, the good standards that are used for the right to information in historical documents. And a mechanism of appeal to the court and a final decision of the court, creates what we consider the consolidation of practice. It is mandatory for everyone for as long as it takes, not only for the parties to that process, but also for the whole of society. These are the tools that have proven most effective in those countries that use them to get the best benefit for the public interest in these matters.
It is clear that regular publications of historical information and lists of documents that remain restricted are also mechanisms that need to be strengthened and there should be clear instructions on the process for making an access to information request. It is what I said before, clear instructions so that people understand what they need to do to get information, it should be easy, there should be no bureaucratic rules and they should not be burdened with excessive costs.
Meanwhile, it is advisable to have a pro-active policy of publishing, organizing projects and events on historical documents. So, the authorities should not remain only on the part of what is requested and have that passive role, that if they are put into motion they will take the commitment to respond to the requester. But they should also organize activities on events related to the focus of their work, such as the one being organized today and is very valuable. Meanwhile, when a response is required from the executive branch or from other powers to access requests, it is important to have detailed justifications for withholding information and these should be given within a reasonable time. So, let's understand another situation, in order to be objective. Not every request for information can receive a treatment. The request must be clear, well formulated and the requester has the obligation to be accurate in the information he or she is requesting.
The body that responds should be detailed in the information it provides, as well as the information should be provided within a reasonable time. The Council of Europe, the Parliamentary Assembly of the Council of Europe in this draft resolution, have requested that effective cooperation be increased with historians, researchers, civil society organizations and all groups directly affected by restrictions to address historical documents. The public should be properly informed about changes in the legal framework on access to information or in the archival system. Any changes in the law and policy on access to historical information should be adopted only after extensive consultations with the groups affected. Civil society groups working on the task of preserving historical memory should be supported, including financially. Individuals and civil society organizations working on research and preserving historical memory should be protected from harassment or persecution. It should not be forgotten that these are situations that are still experienced today in society in many countries.
Therefore, the Council of Europe, the Parliamentary Assembly, have put this in focus. The Parliamentary Assembly underlines the importance of cooperation with civil society and between states, to increase transparency and to ensure that different perspectives are taken into account. There is also an issue of access to documents and historical archives that are held by other countries, due to state inheritance or border changes over the years. This is about those archives that were in a state, which covered both territorially and substantively, more than one state that exists today. So when a large state is divided into several other states, the problem remains that the archives are not also divided, let's say, in this new reconfiguration of states. People already need to understand information from these archives, but if they are no longer in this large state, but are in other states, problems have arisen in terms of access to information. And this is an issue that needs to be addressed very seriously by all member states of the Council of Europe. We have decided that the archives should be returned, to alleviate the difficulties of physical distance, which can hinder the establishment of historical truth. Member States should negotiate the return of their archives in good faith. They often become causes for conflict, but in these cases everyone should think that they are on an issue that unites them rather than divides them.
In the meantime, governments and civil society should promote international cooperation in opening archives to public inspection regardless of their location. For all these reasons above, we have proposed that the Parliamentary Assembly of the Council of Ministers recommend to the Committee of Ministers of the Council of Europe, a recommendation addressed to member states on access to historical documents in a specific way. This recommendation will focus on all these issues that I have just mentioned. An information, report and draft resolution, and with recommendations from the Committee of Ministers, have been unanimously passed by the Committee on Laws of the Parliamentary Assembly of the Council of Europe. It is expected to be examined at the spring session, in March 2024, by the Parliamentary Assembly of the Council of Europe. The issues that have been discussed have not been simple, but I believe that as we received unanimous support in the Committee, we will also have a significant vote in the Parliamentary Assembly of the Council of Europe.
Finally, a few words on the important aspect of the vision for the future. Ensuring access to information is essential, because it enables public scrutiny of state activity, democratic participation and good governance. This is particularly the case in states with a history of authoritarianism characterized by censorship, state control of the media and information, and heavy state surveillance of individual rights. It is very important to open access to historical documents, for social reconciliation, for transitional justice, for healing from repression and for correcting disinformation. This is why information about serious violations of human rights, or humanitarian law and crimes committed by state agents, should not be suppressed, for reasons of national security, under any circumstances. This is also my position as rapporteur at the Council of Europe, calling for the grounds for restriction to be limited as much as possible. The right to the historical truth of society in general must always prevail.
Thank you for your attention and good luck with this event!