Violence against Speakers / Impunity
Duque v. Ministry of the Interior and Justice
Closed Expands Expression
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In this case, the European Court of Human Rights held that if a public employee brings concerns of illegal surveillance of the public, so long as those disclosures are made in good faith, the government may not fire the employee and thus violate his freedom of expression under the European Convention on Human Rights.
The Romanian Intelligence Service, with the proper prosecutorial authorizations, monitors all the calls made by individuals in its registry. One of its headquarters is based in Bucharest, the capital of Romania.
In 1996, one of its employees, Constantin Bucur, began noticing irregularities in the authorizations and records belonging to RIS. For example, some records were written in pencil and the names of those being monitored had no correspondence with the names of the telephone owners being tracked. Additionally, Mr. Bucur noticed a large number of politicians, journalists, and businessmen had all recently begun to be monitored after several high-profile news events occurred.
Becoming extremely suspicious of this recent activity, Mr. Bucur expressed his concerns to his colleagues and supervisors. All of these efforts were met to no avail; in fact, his supervisors rebuked him and advised him not to do so again. However, dissatisfied with this response, Mr. Bucur approached a Member of Parliament who was part of an RIS oversight committee. The MP told him that the way to affect change most effectively was to hold a press conference in which Mr. Bucur presented his claims and had the evidence to substitute them.
Mr. Bucur did so on May 13, 1996. Stating that his desire was merely to ensure that the laws of Romania and, above all, the constitution were respected, Mr. Bucur detailed the irregularities he found and the people being monitored. He also produced 11 tapes documenting state-sponsored recordings of journalists and politicians.
The government did not take kindly to this press conference and the resulting humiliation it endured in national and international media. Mr. Bucur was fired and just days later a criminal investigation begun against him. His trial before the Territorial Military Court started on October 24, 1996. A number of private and public hearings were held before the military court issued its decision. Unsurprisingly, much of the trial was focused on a series of disputes regarding the relevant documents; Mr. Bucur wanted the government to produce the documents allegedly substantiating that the monitoring was done in accordance with Romanian law, while the government did not want to produce such documentation.
In the end, Mr. Bucur was given a two-year suspended sentence for the theft and transmission of state secrets. The military court also held that all the authorizations Mr. Bucur had alleged were illegal were in fact all properly supported by authorizations.
Mr. Bucur appealed, but on June 14, 1999, the Military Court of Appeal affirmed. On appeal to the Supreme Court of Romania, the high court held a series of hearings stretched across, amazingly, three years (1999-2002). Despite this enormous number of hearings, on May 13, 2002, the Supreme Court dismissed the appeal and affirmed the military court’s sentence. Thereafter, Mr. Bucur briefed his case before the European Court of Human Rights.
Although the European Court of Human Rights (ECtHR) had to tread somewhat lightly since it was dealing with issues of national security and state secrets, the ECtHR still engaged in a four-part analysis in determining whether Mr. Bucur’s fundamental human rights to free expression had been violated.
The ECtHR moved somewhat quickly through the first three steps. First, it was undisputed that the Romanian government had interfered with Mr. Bucur’s rights when it imposed a two-year suspended sentence for the violation of a criminal statute. Second, after entertaining some argument on the issue, the ECtHR held that the criminal sentence was prescribed by law since Romanian statutes addressed the penalty for the disclosure of state secrets and Mr. Bucur could have foreseen that those laws would be used against him. Third, the court held that, at least theoretically, the prevention of disclosure of state secrets and the punishment of those for disclosure was a legitimate aim.
The ECtHR focused much of its analysis on whether, pursuant to the language of Article 10 of the European Convention on Human Rights (ECHR), the interference with Mr. Bucur’s rights was “necessary in a democratic society.” Overall, the court’s mission was to to balance the two competing claims at issue in this issue: Mr. Bucur’s right to freedom of expression against his duties to maintain secrecy, confidentiality, and discretion. National security concerns were also implicit in the latter category. In other words, whistleblowers have rights protected under the ECHR, but so do the governments whose information is being disclosed.
The ECtHR ultimately reached its conclusion in determining whether the government’s response (the criminal conviction and sentencing) was “proportionate” to Mr. Bucur’s press conference and disclosures. The ECtHR utilized five factors in this analysis. First, the court found that the public had an enormous interest in the state’s failure to its own laws. Especially in Romania, where the paternalistic, communist state is still a recent memory, the public has a right to know who is being monitored and when the government is failing to obtain the proper authorizations for surveillance. Second, the court found that Mr. Bucur held his press conference as a “last resort,” that is, only after being rebuked by his colleagues and supervisors at the RIS. Third, while the court indirectly stated that it had neither the jurisdiction nor the authority to order the Romanian government to produce documents or evaluate their veracity, Mr. Bucur did have a reasonable basis for his suspicions that Romanian law was being violated. In other words, while the court would never know if the disclosures were “actually” true, there was plenty of reason to believe that Romanian surveillance law was not being respected.
Fourth, the ECtHR determined that, weighing all the equities, the RIS was not damaged as a result of Mr. Bucur’s disclosure. Specifically, given the fact that the Romanian public already had little faith in the surveillance arm of their government and that it had an interest in receiving news of its noncompliance with the law, Mr. Bucur’s press conference did not cause harm. This finding is quite unusual as even when dealing with quite severe actions taken by states, the ECtHR still finds that the state was harmed in, for example, an individual’s failure to maintain secrecy.
Finally, the court held that since Mr. Bucur’s disclosures were made in good faith (that is, he was not motivated by revenge or economic concerns), the two-year sentence was unreasonably severe. The court reversed his sentence and ordered Romania to pay him €20,000 in non-pecuniary damages related to this Article 10 violation.
It should be noted that, although not discussed as thoroughly in this review, the court also found that Mr. Bucur had not received a fair trial and that the Tomas, the other applicants before the court, had their privacy rights violated when the government recorded their telephone calls.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The court sent a very clear message to the contracting states of the ECHR: Either respect and address your employees’ concerns when they believe that national law is being broken, or face the consequences when these employees eventually decide to bring these issues before the public-at-large. Interestingly, the court spent little time addressing whether the RIS’s actions were, in fact, illegal, even under European human rights law. Instead, the analysis focused on how the whistleblower, Mr. Bucur, was treated by the government. Governments are now on express notice that if they address serious concerns internally, these issues will probably not have to be heard before the ECtHR. However, if a whistleblower is rebuked, humiliated, or censored, then the national government will be liable for any punitive actions it takes against the whistleblower, so long as the disclosure is done in good faith and imparts true information.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The ECtHR’s judgment clearly sets forth extremely important precedent for both its own jurisprudence and the actions of the ECHR’s contracting states.
Let us know if you notice errors or if the case analysis needs revision.