CASE OF GÎRLEANU v. ROMANIA
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano
6. The applicant was born in 1963 and lives in Focşani. 7. At the material time the applicant was a local correspondent for the national daily newspaper România liberă. The applicant’s articles covered various fields, including investigations into the activities of the armed forces and the police. 8. In the summer of 2004 secret documents were leaked, accidentally or deliberately, from the Romanian unit of an international military base in Afghanistan. The leak consisted mostly of copies of documents produced by the Romanian unit and classified as secret. The documents referred to the military operations of the Romanian troops at the said base in 2002 and 2003, such as operations orders or military maps. Copies of secret documents produced for the use of the Romanian unit by a military unit belonging to another country were also leaked. 9. In March 2005 three Romanian journalists, including O.O., who was working for România liberă, were kidnapped by a terrorist group in Iraq. Their release in May 2005 was negotiated by the Romanian State and an investigation was immediately started by the Romanian authorities. The following year the media extensively reported on this case and the role played by the authorities. 10. On 31 January 2006 O.O., together with other journalists, participated in a television show on a national channel. They criticised the authorities’ negligence in allowing leaks of secret sensitive military information and mentioned the existence of a compact disc (“CD”) with secret documents belonging to a Romanian military unit in Afghanistan. When the host of the show questioned the authenticity of the information on the CD, O.O. showed his computer to the camera. Some of the documents, including several military maps with the positions of the Romanian troops, were thus made visible to the public. 11. The journalists speculated as to whether such information could have reached terrorists too and demanded an investigation in order to establish whether the leaks had been voluntary. O.O. also said that although at that stage, the information no longer posed a threat to the lives of Romanian soldiers, it could have more serious implications in connection with the conflict in Afghanistan and Iraq. 12. During the show it was mentioned that the newspapers România liberă and Ziua had received the secret information in question but had decided not to publish it, fearing possible damage to national security. 13. On 7 February 2006 the national daily newspapers, România liberă and Ziua, published articles drawing attention to the fact that confidential information which could threaten national security had been leaked from a military unit under the authority of the Ministry of Defence. 14. On 8 February 2006 O.O. participated in a radio show together with the chairman and vice-chairman of the Defence Commission of the Romanian Senate, the director of Ziua and an investigative journalist from a national newspaper. The show followed a day of discussions and explanations about the leak of secret documents given by the Minister of Defence, the Chief of the Armed Forces and the head of the Information Department of the Army before the Defence Commission of the Senate. When asked how they had obtained the documents in question, O.O. refused to disclose his source, while the director of Ziua stated that he had received them anonymously. The chairman of the Defence Commission mentioned that the security of classified information had been one of the main chapters in Romania’s negotiations for joining NATO. He emphasised the importance of the Ministry of Defence undertaking a thorough investigation in connection with the leak, which put into play Romania’s credibility as a member of NATO. 15. On 3 March 2006 the Minister of Defence held a press conference during which he announced that an internal inquiry into the leak of classified information had been finalised and that seventy-nine members of the army were being punished with disciplinary sanctions. Further investigations were being conducted by the prosecutors with respect to two other members of the army. The minister also confirmed the fact that he had been informed about the leak by the Romanian Intelligence Service (Serviciul Român de Informaţii) in October 2005 and that the specialised army departments had immediately started preliminary verifications. 16. On 7 February 2006 the prosecutor’s office attached to the High Court of Cassation and Justice opened of its own motion an investigation on the basis of the articles published the same day in România liberă and Ziua (see paragraph 13 above). At the same time, the Ministry of Defence informed the same prosecutor’s office about the leak of information from within its structures. 17. Shortly afterwards the prosecutor decided to institute criminal proceedings against the applicant and four other people (P.I. – a former member of the armed forces, O.S. – a journalist, E.G. and I.M.) for disclosing classified information on national security under Article 169 of the Criminal Code, and for the gathering and sharing of secret or confidential information under Article 19(1) of Law no. 51/1991 on national security. 18. Authorisations had been issued for the interception of telephone calls made from the phone numbers belonging to E.G., I.M. and P.I., as well as for the surveillance of E.G. and I.M. and the ambient recording of their discussions. As a result, transcripts of discussions between the applicant and E.G. and I.M. had been included in the investigation file. 19. At 4.30 p.m. on 16 February 2006, after his house had been searched by the police and the hard drive of his computer seized, the applicant was taken into police custody. 20. On 17 February 2006 the applicant’s pre-trial detention was authorised by a judge for a period of ten days. An appeal lodged by the applicant against the measure was allowed and he was released on 18 February 2006. 21. The prosecutor established that at the beginning of July 2005 O.S., a journalist specialised in military issues, working for local newspapers in Focşani, had received on a CD a copy of the secret military documents leaked in 2004. At that time, three people, including P.I., had been in possession of the above-mentioned documents. On 2 July 2005 O.S. had met the applicant and had given him a copy of the CD. 22. A list of the applicant’s telephone calls showed that on 4 July 2005 he had called the head of the public relations department of the Romanian Armed Forces. In the following months, both the applicant and O.S. had discussed the content of the CD with other journalists and on several occasions with employees of the Romanian Armed Forces and of the Romanian Intelligence Service. 23. The investigation further established that by the end of 2005 the applicant had shown the content of the CD to a few people and had given a copy of the CD to E.G. and I.M., who the applicant believed were former members of the police. Furthermore, in January 2006 O.O. (see paragraph 10 above) went to Focşani and met the applicant and O.S., who showed him the documents. 24. In a statement given before the prosecutor on 16 February 2006, the applicant said that he could not remember having discussed the secret documents with O.O. He also said that as soon as he had found out about the information in question, he became interested in it as a journalist. Because there were doubts about the authenticity of the documents, he had had to contact a number of people in order to verify the information. It was in that context that he had discussed and shown the said documents to E.G. and I.M., who had let him believe they had connections with high-ranking politicians. He acknowledged that he might have told some of his friends that he had seen secret documents in order to be given more credit as an investigative journalist. 25. On 2 July 2007 the head of the Romanian Armed Forces informed the chief prosecutor of the prosecutor’s office attached to the High Court of Cassation and Justice that the documents which formed the object of the investigation and which had been issued by the Romanian army, and had been compromised by their publication in the media, had been de-classified. 26. On 15 August 2007 the prosecutor’s office attached to the High Court of Cassation and Justice decided that “by receiving (obtaining) from O.S. a CD that he [had] watched three times; by saving on the hard drive of his computer the information classified as State secret and work secret and by giving the CD to I.M. and E.G., outside the legal framework set forth by the provisions of Law no. 182/2002 and Government Decision no. 585/2002”, the applicant had committed, in a continuous form, the crime proscribed by Article 19(1) of Law no. 51/1991. The prosecutor decided, however, not to indict the applicant but to sanction him with an administrative fine of 800 Romanian lei (ROL) (approximately 240 euros (EUR)). The applicant was further ordered to pay part of the judicial costs incurred in the investigation in the amount of ROL 1,912 (EUR 572). The prosecutor also ordered the confiscation of the hard drive seized from the applicant on 16 February 2006. 27. The prosecutor’s decision was based on the Romanian legal framework on classified information, which was held to include Law no. 182/2002 on the protection of classified information, Government Decision no. 585/2002 approving national standards for the protection of classified information, Government Decision no. 781/2002 on the protection of professional secrets and Law no. 51/1991 on national security. The decision further mentioned that the applicant had received the secret military information and had proceeded to verify its nature and importance. He had further shared the information with other people. From the elements in the file, the prosecutor concluded that the purpose of the applicant’s actions was just to make himself more visible as an investigative journalist and not to serve the public interest. Noting that the protection of classified information was an obligation incumbent only on authorised personnel, the prosecutor nevertheless considered that information concerning national defence was classified and could not be of public interest, as provided for by Article 12(1)(a) of Law no. 544/2001 on access to public information. As a result, although anyone unauthorised in the field of national defence – such as a journalist – was not bound by a duty to protect this type of information, he or she did not have the right to disclose it to the public. 28. In view of the above, the prosecutor considered that the applicant had acted with intent to disclose classified information outside the above-mentioned legal framework. However, the prosecutor considered that the crimes committed by the applicant and the other four suspects were not serious enough to require the pursuit of the criminal investigation. In this connection, the prosecutor noted firstly that the information in dispute was not likely to endanger national security but only to harm the interests of the Romanian State and its armed forces. In addition, the information was outdated and hence was no longer likely to endanger the Romanian military structures in Afghanistan. The information in question had already been “compromised” (disclosed by a member of the armed forces to a civilian) as early as the summer of 2004, with no measures having been taken by the institution concerned. The prosecutor also mentioned that the actions undertaken by O.S and the applicant in order to gather information concerning the content, nature and importance of the secret documents in question, by contacting active or reserve members of the armed forces or other journalists were part of the working methods of investigative journalists and did not necessarily present a danger for society. 29. The applicant complained against that decision to the superior prosecutor, who rejected the complaint as ill-founded on 6 November 2007. 30. On 3 December 2007 the applicant complained against the prosecutors’ decisions before the Bucharest Court of Appeal. He submitted that he had been wrongfully found guilty of the crime proscribed by Article 19(1) of Law no. 51/1991. In his opinion, that Article, as well as the entire law, imposed obligations only on people authorised to work with secret information. He contended that he had not made any steps to gather military secrets but had merely passively received information that was already in the public domain. Invoking Article 10 of the Convention, the applicant submitted that the Court had already decided that once information concerning national security had entered the public domain, it was difficult to justify the imposition of sanctions for its publication. He therefore urged the court to acknowledge that his actions could not be regarded as crimes. 31. On 5 February 2008 the Bucharest Court of Appeal rejected the applicant’s complaint as ill-founded. The court held that the facts established during the investigation had led to the conclusion that the applicant had secretly transmitted the CD containing secret information to other people he knew, avoiding handing it over to the competent authorities of the Ministry of Defence or the Romanian Intelligence Service. The court further held: “The accused’s capacity as a journalist cannot exonerate him from the commission of this crime because anyone who finds out about secret military information does not have the right to publish it since this might endanger the lives of soldiers, officers in the conflict environment. But the applicant, by the means described above, covertly shared the secret information, which could have reached people interested in putting military structures in danger. The accused did not even wish to use his profession in order to bring to the public’s knowledge the leak of information, as he failed to ask the newspaper for which he worked to make public the breach of state secrets in the military (obviously the military secret information could not have been published). The freedom of the press invoked by the accused cannot give a journalist the right to make public, to unofficial people, secret military information, because this may endanger the right to safety of certain military structures.” 32. The applicant was ordered to pay court fees in the amount of ROL 50 (EUR 13). 33. The applicant appealed against that judgment. He alleged that the information in dispute had already been in the public domain at the time it had been brought to his attention. He submitted that the prosecutor’s decision had breached his freedom of expression in an attempt to cover up an embarrassing situation for the authorities, who had allowed the information to be leaked to the public. 34. On 23 March 2009 the High Court of Cassation and Justice rejected the applicant’s complaint with final effect. The court held that Article 19 of Law 51/1991 applied to anyone who gathered and shared secret information outside the legal framework. It further held that the applicant had not contested the fact that he had come into possession of secret information which he had then shared with other people outside the legal framework. Moreover, he had done this with direct intent. Considering that the information in question had not been in the public domain, the court held that journalists coming into possession of such information must submit it to the competent authorities and were allowed by law to share with the public only the failure of the institution concerned to protect its confidentiality. Having failed to act in that way, the applicant had committed the crime proscribed by Article 19(1) of Law no. 51/1991. The court concluded that the prosecutor had correctly considered that the crime had not, however, attained the degree of seriousness to require criminal sanctions. 35. The applicant was ordered to pay court fees of ROL 200 (EUR 47).