Information Note on the Court’s case-law 224
December 2018
Brisc v. Romania - 26238/10
Judgment 11.12.2018 [Section IV]
Article 10
Article 10-1
Freedom to impart information
Removal of chief prosecutor for having provided information to media about pending investigation on influence peddling: violation
Facts – In May 2009 the Superior Council of the Magistracy found the applicant, who was chief prosecutor at the time, guilty of two disciplinary offences: failing to observe the secrecy of deliberations or confidential documents; and being disrespectful towards colleagues in the exercise of his duties. It noted that the applicant had issued a press release and given a television interview revealing information about a flagrante delicto operation related to a criminal investigation into influence peddling. This information enabled the press to identify judge G.E. as the alleged recipient of the money. The applicant’s appeal against the decision was dismissed and he was subsequently removed from office.
Law – Article 10: The applicant had made the impugned statements to the press in the context of discharging his duties as the staff member designated to provide information to the press, a position which he had occupied over the preceding five years. In this capacity, it had been his professional duty to provide information to the press about investigations that attracted media attention, such as the case of influence peddling in issue.
The subject matter of the applicant’s press release and interview had been a matter of public interest. The flagrante delicto operation and the inquiry into the offence of influence peddling had triggered interest at the local level and the applicant had seen fit to inform the press of certain aspects of the investigation. In doing so, the applicant had proceeded with caution, refraining from identifying by name any of the individuals involved. He had not adopted any stance as regards the guilt of any of the persons involved but had simply provided a summary description of the prosecution case at its initial stage. His press release, as confirmed by the prosecutor in charge of the file, had not been prejudicial to the proper conduct of the ongoing investigation.
Moreover, the applicant had not used or cited any documents protected by the secrecy of the judicial investigation or otherwise revealed confidential information relating to ongoing criminal proceedings. At the time the applicant had issued the press release, the information concerning the flagrante delicto operation was no longer confidential as the two journalists who had been present at the incident had published articles, accompanied by photographs taken on that occasion. Consequently, there was nothing in the applicant’s statements that would have allowed the domestic authorities to accuse him of breaching the secrecy of the criminal investigation.
As for the alleged impact on judge G.E.’s professional reputation, the Court was not convinced that the impugned press release or the interview could have been considered as an attack reaching the requisite threshold of seriousness and capable of causing prejudice to the judge’s professional reputation. The National Audiovisual Council, which had examined judge G.E.’s complaint about the way in which the television channel had broadcast the news about the flagrante delicto operation, concluded that the judge’s reputation had not been harmed. Furthermore, in finding the press release and the applicant’s interview defamatory of judge G.E., the domestic authorities had not heeded the fact that the impugned statements did not emanate from the applicant but from a third party. Finally, there was no evidence that the domestic authorities had conducted a balancing exercise between the need to protect the reputation of judge G.E. and the applicant’s right to impart information on issues of general interest concerning ongoing criminal investigations. They had confined their analysis to a mere discussion of the damage to the judge’s reputation without regard to the applicant’s argument that the impugned statements had been made by a third party and without taking into account the criteria set out in the Court’s case-law.
In conclusion, the standards applied by the domestic courts had not been compatible with the principles embodied in Article 10 of the Convention and “relevant and sufficient” reasons had not been adduced. The interference had therefore been disproportionate to the aim pursued and not “necessary in a democratic society”.
Conclusion: violation (five votes to two).
Article 41: EUR 4,500 in respect of non-pecuniary damage and EUR 1,825 in respect of pecuniary damage.
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This summary by the Registry does not bind the Court.
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