ECHR judgment of December 11, 2018 in the case of Brisc v. Romania (аpplication N 26238/10).
In 2010, the complainant was assisted in preparing an аpplication. Subsequently, the аpplication was communicated to Romania.
The case was successfully considered an аpplication about the removal from office of the chief prosecutor for providing them with the media information about the upcoming investigation, carried out using his official position for personal purposes. The case has violated the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In May 2009, the Superior Council of Magistrates recognized the applicant, who at that time was the chief prosecutor, guilty of two disciplinary offenses: failure to observe the secrecy of the meeting or confidential documents and disrespect for colleagues in the performance of their duties. It was noted that the applicant issued a press release and gave a television interview revealing information about the operation carried out at the crime scene related to the criminal investigation of the use of his official position for personal purposes. This information allowed the press to identify Judge G.E. as the intended recipient of the money. The applicant's appeal against this decision was rejected, and the applicant was subsequently removed from office.
QUESTIONS OF RIGHT
Regarding compliance with Article 10 of the Convention. The applicant expressed disputed press allegations as part of his duties as an employee of the press service; he had held this position for the previous five years. In this capacity, his professional duty was to provide information to the press about investigations that attracted the attention of the media, such as the case in question, the use of official position for personal gain.
The topic of the press release and the interview with the applicant attracted public interest. The actions at the crime scene and the investigation of crimes related to the use of an official position for personal purposes aroused interest at the local level, and the applicant considered it appropriate to inform the press about certain aspects of the investigation. However, the applicant acted with caution, refraining from giving the names of the persons involved. He did not state any position with regard to the guilt of any of the persons involved, but merely stated a brief objective description of the charge at its initial stage. His press release, confirmed by the prosecutor who investigated the case, did not cause damage to the proper conduct of the current investigation.
Moreover, the applicant did not use or quote any documents protected by a secret judicial investigation, and otherwise did not disclose confidential information relating to the criminal proceedings. When the complainant issued a press release, information about the operation at the crime scene was no longer confidential, since two journalists who were present at the event published articles with photos taken at the scene of the incident. Consequently, there was nothing in the applicant's testimony that would allow the Romanian authorities to accuse him of violating the secrets of the criminal investigation.
As regards the presumptive influence on the professional reputation of Judge G.E., the Court is convinced that the contested press release or interview could be regarded as an impact that reached the necessary threshold of seriousness and could damage the professional reputation of the judge. The National Council for Audiovisual Media, which examined the complaint of Judge G.E. on how the television channel spread news about actions at the scene of the crime, concluded that the judge’s reputation was not damaged.
In addition, while recognizing the press release and the interview of the applicant as defamatory to judge G.E., the authorities of the respondent state did not take into account the fact that the disputed testimony did not come from the applicant, but from a third party. Finally, there is no evidence that the Hungarian authorities tried to strike a balance between the need to protect the reputation of Judge G.E. and the complainant’s right to disseminate information about problems of public interest related to the ongoing criminal investigation. They limited their assessment to a simple discussion of the damage to the judge’s reputation, without taking into account the applicant's argument that the disputed statements were made by a third party and not taking into account the positions expressed in the case-law of the European Court.
In conclusion, the standards applied by the courts of Hungary were not compatible with the principles enshrined in Article 10 of the Convention, and they did not provide "relevant and sufficient" grounds. Thus, this intervention was disproportionate to the aim pursued and was not “necessary in a democratic society”.
The case was a violation of the requirements of Article 10 of the Convention (adopted by five votes "for" with two - "against").
In application of Article 41 of the Convention. The Court awarded the applicant EUR 4,500 in respect of non-pecuniary damage and EUR 1,825 in respect of pecuniary damage.