The Slovene Intelligence and Security Agency (Sova) has requested the opinion of the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) regarding the protection of human rights and fundamental freedoms in connection to the disclosure of archived materials. They requested from us our assessment on whether the disclosure of a portion of the archived materials of the former National Security Service, accessible pursuant to Article 65 of the Protection of Documents and Archives and Archival Institutions Act (ZVDAGA, Official Gazette of the Republic of Slovenia, No. 30/2006), could pose a threat to the constitutional protection of human rights and fundamental freedoms, and to the right to personal dignity and safety and the right of inviolability of human life from Articles 34 and 17 of the Constitution of the Republic of Slovenia. This portion of the materials namely contains personal data of persons, including citizens of other countries, who cooperated with the former National Security Service, operating in the interest of Slovenia or the former Yugoslavia.

The Ombudsman has reviewed the matter within the scope of competence defined in the second paragraph of Article 9 of the Human Rights Ombudsman Act (ZVarČP), according to which the Ombudsman shall also treat broader questions important for the protection of human rights and fundamental freedoms and legal certainty of citizens of the Republic of Slovenia.

Based on discussions with representatives of Sova regarding the materials submitted to us for review and following an examination of the provisions of ZVDAGA, the Ombudsman has assessed that the implementation of the third paragraph of Article 65 of the said Act without additional protective measures could constitute an intervention into the constitutional protection of the human rights of individuals. The Ombudsman also judged that the provision of the third paragraph of Article 65 of ZVDAGA does not suitably observe the denoted right and gives too much competence and responsibility in the matter to archival bodies, therefore it would be necessary to amend or supplement this provision as soon as possible.  

The third paragraph of Article 65 of ZVDAGA defines: “The archives created before the constitution of the Assembly of the Republic of Slovenia on May 17, 1990, relating to former social and political organizations (e.g. League of Communists of Slovenia, Socialist Alliance of the Working People, Trade Union Federation of Slovenia, League of Socialist Youth of Slovenia, Slovenian Union of Associations of War Veterans and Participants in the National Liberation Struggle, Reserve Officers Association of Slovenia), internal affairs authorities (e.g. police), judicial authorities (e.g. courts, prosecutors, prisons) and intelligence and security services shall be available without limitations, except for those archives containing sensitive personal data acquired with violations of human rights and fundamental freedoms, and relating to persons, who were not public office holders.”

The materials and information the Ombudsman has been acquainted with, in her opinion convincingly pose a danger resulting from interventions into the rights of individuals, which could arise upon the disclosure of specific materials. We have assessed that access to the materials of former National Security Service without additional restrictions, necessary for the observance of fundamental human rights and freedoms and interests of national security, is not in accordance with the Constitution and international documents regulating the protection of human rights. Access without restrictions protecting the stated rights, freedoms and interests is therefore according to the Ombudsman's opinion contrary to the rights and freedoms guaranteed by the Constitution of the Republic of Slovenia and ratified international documents regulating the protection of human rights. In the Ombudsman's opinion, the constitutional rights to personal dignity and safety (Article 34 of the Constitution of the Republic of Slovenia), to the protection of the right to privacy and personality rights (Article 35 of the Constitution of the Republic of Slovenia), the protection of personal data (Article 38 of the Constitution of the Republic of Slovenia), and also the right of presumption of innocence (Article 27 of the Constitution of the Republic of Slovenia) could especially be threatened due to erroneous or unprofessional explanations of the said materials. The danger of interventions into the said rights and freedoms should in the Ombudsman's opinion be remedied through suitable amendment of ZVDAGA as soon as possible.

In the aforementioned opinion, the Ombudsman did not express any views regarding individual applications for access to materials pursuant to ZVDAGA, political and other questions regarding management and accessibility of archives of former state security and intelligence services and did not provide any proposals on how the said Act should be amended.

Following the submission of the above opinion of the Ombudsman, the Government of the Republic of Slovenia prepared the Act on Supplementing and Changing of the Protection of Documents and Archives and Archival Institutions Act, adopted by the National Assembly of the Republic of Slovenia at its session on 4 February 2011. As of this moment (February 2011) the Act has not yet been published and enforced due to the pending referendum procedure.