Information Note on the Court’s case-law No. 124
November 2009
Bojolyan v. Armenia (dec.) - 23693/03
Decision 3.11.2009 [Section III]
Article 10
Article 10-1
Freedom to impart information
Ten-year prison sentence for communicating non-classified information to a foreign intelligence service: inadmissible
Facts – The applicant, a journalist and former intelligence officer, was convicted of high treason in the form of espionage for providing information of a military, economic and political nature to the Turkish intelligence service. The information, which was communicated by the applicant for personal gain, included, inter alia, data concerning border controls, military personnel, radar and military installations and military aircraft. The applicant was sentenced to ten years in prison. He appealed unsuccessfully. In his appeal, he argued, inter alia, that all the information had been collected from the mass media and was thus in the public domain.
Law – Article 10: The right to freedom of expression, which included freedom to impart information, was not restricted to certain types of information, ideas or forms of expression. Nor did it exclude from its scope information which was addressed only to a limited circle of people and did not concern the public as a whole, including information communicated to a foreign intelligence service. The applicant’s conviction had therefore amounted to an interference with his right to freedom to impart information. The formulation of the offence in the domestic law was sufficiently precise to enable the applicant, a former intelligence officer, to have foreseen the consequences of his actions. The interference was therefore prescribed by law. The domestic law criminalised communication of non-classified information only if such information was communicated to a foreign intelligence service in order to be used to the detriment of Armenia’s interests. The Court did not find it unreasonable that even certain types of non-classified information, if collected by an intelligence service of a foreign State, might cause damage to a State’s national security and that the State had a legitimate interest in making the communication of such information to a foreign intelligence service a punishable act. The present case was distinguishable from those concerning freedom of the press: the information collected from various sources by the applicant had been communicated exclusively to a foreign intelligence service. The domestic courts had therefore enjoyed a wide margin of appreciation in deciding the applicant’s case. The fact that at the material time the applicant had also allegedly worked as a journalist was of little importance since he had not been convicted for his journalistic activities. Non-classified information might vary significantly in its nature and substance, as well as the manner and purpose of its communication, as opposed to secret information which, owing to its special status, would almost invariably result in damage to national-security interests if obtained by an intelligence service of a foreign State. The existence of any damage or threats to national security therefore had to be assessed in the particular circumstances of each case. The domestic courts were better equipped than the European Court to assess whether and what damage could be done when non-classified information was communicated to the intelligence service of a foreign State. Nevertheless, the margin of appreciation enjoyed by the domestic courts in this matter, even if a wide one, could not be said to be unlimited and, as in all other freedom of expression cases, the assessment of the necessity for any restriction went hand in hand with European supervision. Having regard to the nature of the information in question and the purpose of its communication, the Court could not but agree with the assessment of the domestic courts that the communication by the applicant of this information to a foreign intelligence service had posed a real threat to Armenia’s national security and had warranted the imposition of a penalty. Acts of espionage endangering the interests of national security ranked among the most serious crimes in most member States and the authorities had to be able to combat and prevent such acts in an effective manner, including by custodial sentences. The penalty in the present case, namely ten years’ imprisonment, while undoubtedly harsh, could not however be regarded as disproportionate to the legitimate aim pursued in the particular circumstances of the present case.
Conclusion: inadmissible (manifestly ill-founded).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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