Resolution of the European Court of Human Rights dated June 26, 2018 in the case of Girleanu v. Romania (application No. 50376/09).
In 2009, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Romania.
The case was successfully considered a application against the use of an administrative fine for disclosing military secrets during a journalistic investigation. The case was a violation of Article 10 of the Convention.
THE CIRCUMSTANCES OF THE CASE
In 2005, the complainant, who was a journalist, received from his colleague a CD with copies of secret documents that were due to carelessness taken out (information leakage) from a Romanian military unit in Afghanistan the year before. Subsequently, the complainant discussed the contents of the disc with representatives of the Armed Forces of Romania and intelligence and shared the data from the disc with some journalist friends and other persons.
In 2006, after the media attracted the attention of the public to the leakage of information, criminal proceedings were initiated against several individuals. The applicant was arrested and he spent two days in custody at the police station. The applicant’s house was searched and a hard disk was removed from the computer.
In 2007, when the security classification was removed from the disclosed documents, the prosecutor's office found that the violation of the State Security Act committed by the applicant was not serious enough to require a serious criminal penalty, but decided that the applicant should pay an administrative fine of approximately 240 euros and Compensate for court costs in the amount of 600 euros. The applicant unsuccessfully appealed against the decision.
QUESTIONS OF LAW
Regarding compliance with Article 10 of the Convention. (i) Applicability of Article 10 of the Convention and the existence of an intervention. It was precisely acting as a journalist working in the zone of operations of the armed forces and the police that the applicant obtained the said documents and contacted the authorities, who accepted these documents, as well as his colleagues and other persons who the applicant believed could have known about the issue indicated in documents. All these actions could be considered as part of a journalistic investigation. The applicant was placed in custody, an investigation was carried out against him, and a fine was imposed on him for collecting and disseminating classified information. Consequently, Article 10 of the Convention was applicable, and the punishment imposed was an interference with the applicant's right to freedom of expression.
(ii) Whether the measure complied with the law and whether it pursued a legitimate aim. The intervention was prescribed by law and pursued the legitimate aim of protecting state security.
(iii) Whether the measure was necessary in a democratic society. Taking into account the interests affected, the documents complained of and the fact of their leakage, which caused considerable controversy in the media and became the reason for conducting an internal audit at the Ministry of Defense, they seemed to raise issues of public interest. However, as the prosecutor admitted, the information was outdated and it is unlikely that its disclosure would be detrimental to state security. Moreover, the security label was removed from the documents. Thus, the Government did not prove that the applicant’s actions could have caused significant damage to State security.
When evaluating the behavior of the applicant, it must be borne in mind that he was not a military serviceman to whom special “duties and responsibilities” would apply. He did not receive information in an illegal way and did not actively try to get it. Moreover, before the information was received by the applicant, a number of other persons got acquainted with it. In addition, immediately after the applicant received the materials referred to in the case, he discussed it with the office responsible for the leakage of data. It did not follow from the investigation materials that the indicated department would try to return the materials or would warn about the possible risk in the event of the disclosure of their contents.
As for the judicial review of the measure applied to the applicant, the courts did not take into account any of the peculiarities of his actions. They also did not check whether the information could actually pose a threat to the military units in Afghanistan and, thus, did not match the interest in the form of maintaining the confidentiality of documents for the purpose of investigative journalism and to be informed by the public about the leakage of documents and, possibly, the content of documents.
In cases involving criminal penalties for disclosing military information classified as secretive, the European Court noted that, in matters of state security, domestic authorities should be given discretionary limits. However, in the present case, the applicant was a journalist who claimed that he had disclosed the data as part of a journalistic investigation and that he was not a soldier who collected and transmitted secret military information to foreign nationals or private companies.
Although the penalty applied was relatively small and it was unclear whether the applicant had paid court costs, the domestic courts found it established that the applicant had intentionally committed a criminal offense in the field of state security. The fact of conviction in some circumstances could matter, than a small amount of punishment. In addition, the punishment was intended to ensure that the applicant in the future would refrain from publishing and disseminating information that is classified as secrecy. However, after the secrecy of documents was removed, it was necessary to more carefully consider whether to apply any punishment to the applicant.
As a result, the measures applied were not reasonably proportional to the stated legitimate goal in view of the interests of a democratic society in ensuring and maintaining freedom of the press.
The case was a violation of Article 10 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 4,500 in respect of non-pecuniary damage.