Who can declassify State secrets?

A judge can request it, but only the cabinet can authorise it

2 min
The members of the government speak after appearing in the family photo on the steps of the Moncloa Palace on Tuesday, December 28, 2021

BarcelonaOver sixty people were spied on, around twenty after the secret services were given authorisation by a judge. Among these is the current president of the Generalitat, Pere Aragonès. Catalangate scandal is shaking the Spanish government's stability, which could be forced to call early elections. ERC and the rest of the pro-independence movement is demanding explanations but, for the moment, they have not been given any. All documents related to espionage are official secrets and, if the National Intelligence Centre (CNI) is careful enough to show only the essential part to MPs on the parliamentary official secrets committee –with a commitment of confidentiality– nobody else will know. The Generalitat has asked the Spanish Government to declassify these documents as an exercise in transparency that has few precedents in Spain. But who has the power to decide when secrets are made public?

Without a law that sets deadlines for the declassification of documents, official secrets in Spain can last forever. Therefore, no one without the necessary rank still knows exactly what happened during the attempted coup in 1981, nor during the Madrid train bombings in 2004 nor over Pegasus. There are many cases that end up in court in which one of the parties demands documents be declassified to prove their innocence or someone else's guilt. Judges can follow these demands by submitting a request to the Supreme Court or the High Court. But, even if the magistrates were to accept the request and ask the government to make the documents public, it is the cabinet that decides.

It is therefore up to the Spanish president, Pedro Sánchez, and his cabinet to decide whether or not to declassify CNI reports without having to wait for any court requests, which in any case would be voluntary. So far, however, the government's reaction was based precisely on guaranteeing collaboration with the courts if requested. And Sánchez himself has filed a lawsuit before the High Court requesting an investigation of the other part of the espionage scandal: the one he and some members of his government have suffered.

Collaboration with the courts

"In practice it is the exclusive competence of the cabinet, but in the cases I have seen, court requests have always been attended," explains Xavier Melero, a criminal lawyer who has dealt with official secrets on several occasions. In the Pujol case, for example, the defence made a request for declassification of some reports prepared by the deep state, which hasn't yet been answered.

The 1965 law of official secrets (passed under the dictatorship and which no government has attempted to change) gives the executive powers to keep anything that has been considered confidential secret. The usual defence has been that documents will be declassified when there is a court order. This procedure was followed in 2007, when information on CIA flights in Spain was made public, as was the telephone tapping of ETA's lawyers. In March, Sánchez pledged to do the same with secret documents relating to the case of Mikel Zabalza, who was tortured to death in 1985 while in police custody linked to the terrorist group. "This government will always collaborate with justice," he said then in Parliament.