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02.07.2018

Top court rewards Romanian journalist for publishing leaked military files

By Emil Weber

The European Court of Human Rights (ECtHR) issued a judgement on June 26thprotecting an investigative journalist’s right to access, distribute and discuss leaked military files related to the activities of a Romanian unit in Afghanistan. 

 

The European Court of Human Rights (ECtHR) in Strasbourg (photo: Nicoleon, Cour européenne des droits de l'homme, CC BY-SA 4.0) The European Court of Human Rights (ECtHR) in Strasbourg (photo: Nicoleon, Cour européenne des droits de l'homme, CC BY-SA 4.0)

The leak concerned 2002-2003 military operations by the unit, deployed as part of the NATO contingent.

According to the Romanian authorities, journalist Marian Gîrleanu had downloaded the files into his computer in 2005, had verified its authenticity and had distributed it to other journalists.  

The leaked material was brought to the public’s attention in 2006 in the context of the kidnapping of three Romanian journalists during the previous year in Iraq. Gîrleanu had received a CD of the leaked material from one of the kidnapped journalists, who was working for the same newspaper - România liberă.

Gîrleanu was briefly detained in 2006 and was later (2007) issued bythe Prosecutor’s Office attached to the High Court of Cassation and Justice an administrative fine of around 240 Euros. It considered his acts were a crime. The journalist also had to pay around 1,912 Euros for court proceedings and the prosecutor ordered police to seize his computer’s hard drive. His later appeal was refused by the Bucharest Court of Appeal and the High Court of Cassation and Justice.

 'Not reasonably proportionate'

However, the ECtHR had ruled that “the measures taken against [Gîrleanu] were not reasonably proportionate”, despite recognising the legitimate aim of the authorities to prevent the disclosure of confidential military information. The ECtHR ruled:

In the Court’s view the documents in the applicant’s possession, as well as the fact that they had been leaked from the Romanian army, were likely to raise questions of public interest

The court also referred to the Resolution 1551 of the Parliamentary Assembly of the Council of Europe and the views of the Inter-American Commission on Human Rights which supported the disclosure of related sensitive information to the public. 

It further said that the information in question was out-dated and was “not likely to endanger national security”, since then even the Romanian Ministry of Defence had declassified the leaked information during the course of the investigation into how it had been leaked..

The ECtHR positively evaluated the conduct of the journalist as well. “It is for the States to organise their services and to train their personnel in such a way as to ensure that no confidential information is disclosed”, the court said. “[But] the [journalist] was not a member of the armed forces on which specific ‘duties’ and ‘responsibilities’ are incumbent”.

“The Court further notes that the [journalist] did not obtain the information in question by unlawful means and the investigation failed to prove that he had actively sought to obtain such information. It must also be noted that the information in question had already been seen by other people before the [journalist]”, the judgement read. 

“In addition, the Court observes that the applicant’s first step after coming into possession of the information in question was to discuss it with the institution concerned, the Romanian Armed Forces”, it said.

The judgement mentioned the fact the investigations by the journalist were followed by discussions on television and radio, the newspaper where the journalist was working, and in the national Senate as well as the Ministry of Defence. 

According to ECtHR, the domestic court had failed to take into account the conduct of the journalist and did not check whether or not the disclosure of the information could have threatened the military forces. “Both the Bucharest Court of Appeal and the High Court of Cassation and Justice limited themselves to stating that journalists did not have the right to publish secret military information and that the applicant was guilty of sharing information which could have put military structures in danger”, the court said.

Article 10 of the European Convention 

It further evaluated the relationship between the sanction and the right of the journalist to freedom of expression according to Article 10 of the European Convention. 

“The courts did not appear to weigh, in the circumstances of the case, the interests in maintaining the confidentiality of the documents in question over the interests of a journalistic investigation and the public’s interest in being informed of the leak of information and maybe even of the actual content of the documents”, the court said.

The ECtHR said that the fine imposed on  the journalist was small, but it added that “a person’s conviction may in some cases be more important than the minor nature of the penalty imposed”. 

“The…sanctions against the applicant were imposed before publication of the secret information in question”, it said. “The Court observes that the measures taken against the applicant had the purpose of preventing him from publishing and sharing the secret documents he had in his possession. This fact was not contested by the Government”. 

 “The Court notes that after the de-classification of the documents in question and the prosecutor’s finding that they were outdated and not likely to endanger national security, the decision whether to impose any sanctions against the applicant should have been more thoroughly weighed”.

The ECtHR awarded the journalist 4,500 Euros in non-pecuniary damages, unanimously ruling that the domestic justice’s intervention amounted to violation of Article 10 (freedom of expression) of the European Convention.  

Case of Gîrleanu v. Romania, application no. 50376/09. 26 June 2018

 





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