Information Note on the Court’s case-law 219
June 2018
Gîrleanu v. Romania - 50376/09
Judgment 26.6.2018 [Section IV]
Article 10
Article 10-1
Freedom of expression
Administrative fine for disclosure of secret military information in the context of journalistic investigation: violation
Facts – In 2005, the applicant, a journalist, received from a colleague a CD containing a copy of secret documents, which had been leaked from the Romanian military unit in Afghanistan a year before. Subsequently he discussed the content with the Romanian Armed Forces and Intelligence Service and shared it with some fellow journalists and other persons.
In 2006, after the media had drawn attention to the leak, criminal proceedings were instituted against several persons. The applicant was arrested and spent two days in police custody. His house was searched and the hard-drive of his computer seized.
In 2007, after the leaked documents had been de-classified, the prosecutor’s office found that the breach of the Law on national security committed by the applicant was not serious enough to require criminal sanctions but ordered him to pay an administrative fine of about EUR 240 and judicial costs of around EUR 600. The applicant unsuccessfully challenged this decision.
Law – Article 10
(i) Applicability and the existence of interference – It was in his capacity as a journalist working in the field of the armed forces and the police that the applicant had received the leaked documents and contacted the authority which had produced them, as well as his colleagues and other people who, he believed, had knowledge about the subject. All the above actions could be considered as part of a journalistic investigation. The applicant had been arrested, investigated and fined for gathering and sharing secret information. Article 10 of the Convention was therefore applicable and the sanctions imposed constituted an interference with his right of freedom of expression.
(ii) Whether the measure had been according to law and in pursuance of a legitimate aim – The interference was prescribed by law and pursued the legitimate aim of protecting national security.
(iii) Whether the measure was necessary in a democratic society – Regarding the interests at stake, the impugned documents and the leak, which had given rise to much debate in the media and internal inquiry within the Ministry of Defence, were likely to raise questions of public interest. However, as acknowledged by the prosecutor, the information was outdated and its disclosure was not likely to endanger national security. Moreover, the documents had been de-classified. The Government had thus not succeeded in demonstrating that the actions of the applicant were capable of causing considerable damage to national security.
Considering the applicant’s conduct, he was not a member of the armed forces on which specific “duties and responsibilities” were incumbent. He had not obtained the information by unlawful means; nor had he actively sought to obtain it. Moreover, the information had already been seen by other people before reaching the applicant. In addition, his first step after coming into possession of the information in question was to discuss it with the institution concerned by the leak. It did not appear from the investigation whether the latter had tried to recover the documents or warn about possible dangers in the event of their disclosure.
Regarding the judicial review of the imposed measure, the courts had not considered any of the specific elements of the applicant’s conduct. They had also failed to verify whether the said information could indeed have posed a threat to military structures in Afghanistan and hence had not weighed the interest in maintaining confidentiality of the documents in question against the interests of a journalistic investigation and the public’s interest in being informed of the leak and maybe even of the actual content of the documents.
In cases concerning criminal sanctions for the disclosure of classified military information the Court had held that the margin of appreciation was to be left to the domestic authorities in matters of national security. However, the applicant in the current case was a journalist claiming to have made the disclosure in the context of a journalistic investigation and not a member of the military who collected and transmitted secret military information to foreign nationals or to private companies.
Although the imposed fine was relatively low and it was unclear whether the judicial costs had actually been paid, the domestic courts had held as established that the applicant had intentionally committed a criminal offense against national security. The fact of having been subject to a conviction could in some cases be more important than the minor nature of the penalty imposed. The sanctions had furthermore been aimed at preventing the applicant from publishing and sharing the classified information. However, after the documents had been de-classified, the decision whether to impose any sanctions against the applicant should have been more thoroughly weighed.
In sum, the imposed measures had not been reasonably proportionate to the legitimate aim pursued in view of the interests of a democratic society in ensuring and maintaining freedom of the press.
Conclusion: violation (unanimously).
Article 41: EUR 4,500 in respect of non-pecuniary damage.
(See also Dammann v. Switzerland, 77551/01, 25 April 2006, Information Note 85)
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This summary by the Registry does not bind the Court.
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