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The President of the Republic addressed a message to Parliament on the enactment of the bill that approves the Rules of State Secrecy, the twenty first change to the Code of Penal Process and the thirty first change to the Penal Code, and revokes Law No. 4/84, dated 7 April.
Following is the text of the message from President Cavaco Silva:
“Mr. Speaker,
Having just enacted, to be published as an organic law, Parliamentary Decree No. 241/XII, which approves the Rules of State Secrecy, the twenty first change to the Code of Penal Process and the thirty first change to the Penal Code, and revokes Law No. 4/84, dated 7 April, I decided to address Parliament, as provided for under item d) of article no. 133 of the Constitution, the following message;
1 – In our legal system the Rules of State Secrecy are crucially important due to the interests of the State that it aims to protect. Not by chance, the Constitution provides those with special regard, submitting the respective approval to the regime of organic legislation.
2 – My understanding is that the Rules of State Secrecy must not only be based upon a wide consensus, but also guarantee the stability and the juridical security of its future application. I have clearly stated this belief on several occasions, specifically in the message I addressed Parliament on 5 July 2009, which covered, without enactment, the Decree that changed the Rules of State Secrecy.
3 – The Decree now submitted for enactment, under §2 of article no. 6 of its annex, with respect to declassifying, contains the following provision: “Competence for declassifying any matters, documents or information submitted to the Rules of State Secrecy is restricted to the body that decided its respective definitive classification or to the Prime Minister”.
4 – The referred rule may be interpreted in the sense of attributing to the Prime Minister the competence to declassify matters that have been classified by other bodies, including the President of the Republic or the Speaker of Parliament. This interpretation would not merit my approval, insofar as it would worsen the previously designated difficulties, with special regard to the relationship between sovereign bodies.
5 – A different interpretation must be of course sustained, limiting the Prime Minister’s competence to declassifying documents classified by Deputy Prime Ministers and by Ministers. Only this interpretation deserved my enactment of the bill.
6 – However, in an issue with the relevance of the Rules of State Secrecy, no doubts or ambiguities over interpretation may subsist, and this interpretation must thus very clearly result from the law, and it is certainly possible to lay this down, as is anyway shown by the provisions of §2 of article no. 9 of the bill under enactment.
7 – It would equally be desirable to guarantee that the characteristics that embody the offense of infringing State Secrecy, contained in the change now decreed to article no. 316 of the Penal Code, should make clear the juridical security that must unmistakably result from the prescience of a criminal offense, especially with regard to the new and encompassing formulation of §6 of the same article as to the concept of “fundamental State interests”.
8 – It is thus my belief that such an incrimination would be less questionable, in terms of penal law and juridical security, if the same, evolving in relation to the current text of article no. 316 of the Penal Code, should ensure – maybe through referral to the legal regime of State Secrecy – that its criminalization would arise in the case of behaviours that could involve dangerous revealing of information, facts or documents, plans or objects previously classified as State Secrets.
Having decided to enact this bill, since it corresponds to a change in the Rules of State Secrecy expressly intended by the legislator, based upon a significant consensus and since its opportunity is undeniable, I consider, however, that the cases in question should be the object of review by the Members of Parliament, thus removing any doubts or ambiguities in interpretation that may subsist in such a sensitive issue.
Palace of Belém, 28 July 2014
THE PRESIDENT OF THE REPUBLIC
Aníbal Cavaco Silva"
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