The Case of Kairat Bektenov and others
Closed Expands Expression
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The European Court of Human Rights ruled that the arrest and fining of a journalist for sharing classified information on national security with a small group of people violated his right to freedom of expression. The journalist had obtained secret documents that disclosed, among other things, Romanian military operations in Afghanistan. In order to verify the accuracy of the documents, the journalist contacted the Romanian Armed Forces and intelligence services. When they refused to confirm the veracity of the documents, the journalist shared the documents with some other people. The documents were later declassified, before the journalist was fined for gathering and sharing secret information contrary to the law on national security. The European Court of Human Rights held that the information was of public interest, there was no evidence that the journalist’s disclosure was liable to cause considerable damage to national security, the journalist discussed the information with the institution concerned with the leak, and the courts did not properly weigh the interests and rights at stake in the case. The Court found that the arrest and the fine were not proportionate to the aim pursued, namely the protection of national security and, therefore, there had been a violation of Article 10 of the European Convention on Human Rights (freedom of expression).
The case concerned Marian Gîrleanu, who was a correspondent for the national daily newspaper România Liberă in Romania. His field of work included investigations into the armed forces and the police. He had been arrested and prosecuted for gathering and sharing information of a secret or confidential nature. Although the leaks were discussed in the printed media, notably in articles in România Liberă and on radio and television shows, the actual content of the documents was never made public.
In 2004, there had been a leak of classified documents about the military operations of the Romanian troops in Afghanistan between 2002 and 2003 and secret documents that were sent by foreign forces for the use of Romanian troops in Afghanistan.
A few months later, three Romanian journalists were kidnapped by a terrorist group in Iraq, one of whom worked for România Liberă. Their release was negotiated by the Romanian authorities. The kidnapping received a lot of media coverage and, later, there was a public discussion about the role played by the authorities. In January 2006, during a television show, the kidnapped journalist working for România Liberă criticized the authorities’ negligence in not-preventing the leak of secret documents from the Romanian army. The three journalists speculated that the information that had been made public could have reached terrorists and they urged for investigations to establish whether the leak had been voluntary. During the interview, the journalist mentioned that his newspaper, România Liberă had received the secret information but had decided not to publish it in order to protect national security.
Following this interview, both the journalist and the newspaper kept drawing attention to the threat that the leak had posed to national security. In March 2006, internal inquiries within the Ministry of Defence resulted in 79 members of the army receiving disciplinary sanctions. On February 7, 2006, the prosecuting authorities instituted a criminal investigation against Mr. Gîrleanu, another journalist at the newspaper, for disclosing classified information on national security, and for the gathering and sharing of secret or confidential information. The authorities authorized the interception of telephone calls between Mr. Gîrleanu and other journalists, and Mr. Gîrleanu’s house was searched and the hard drive of his computer was seized by the police. Mr. Gîrleanu was taken into police custody where he was ordered to be held for ten days in pre-trial detention. He successfully appealed against this measure and was released one day later.
The investigation established that, in July 2005, a journalist specializing in the military had given Mr. Gîrleanu a copy of a CD containing the leaked documents. Mr. Gîrleanu had then tried to establish the veracity of the document through the Romanian Armed Forces and intelligence services and, because they would not confirm that they were genuine, shared it with a few other people, including friends and two people he believed to be former police officers.
On July 2, 2007, the head of the Romanian Armed Forces informed the chief prosecutor that the documents had been de-classified. In August 2007, the prosecuting authorities found Mr. Gîrleanu guilty of gathering and sharing secret information in violation of the legal framework on national security. The prosecutor, observing that the information was out-dated and its disclosure was not likely to endanger national security, decided that it was not necessary to pursue the criminal investigation any further. He did not indict Mr. Gîrleanu but did order him to pay an 800 Romanian lei (approximately EUR 240) fine. The prosecutor noted, among other things, that although the information in dispute was not likely to endanger national security it was likely to harm the interests of the Romanian State and its armed forces. The prosecutor also took into account that the information was de-classified and was no longer likely to endanger the Romanian military structures in Afghanistan. Furthermore, the information had already been compromised as early as the summer of 2004. He also mentioned that some of Mr. Gîrleanu’s actions were part of the working methods of investigative journalists and did not necessarily present a danger for society.
On December 2, 2007, Mr. Gîrleanu complained against the prosecutors’ decision before the Bucharest Court of Appeal arguing that he had not gathered military secrets but had merely passively received information that was already in the public domain. He also invoked case law of the European Court on Human Rights to argue that once information concerning national security had entered the public domain, it was difficult to justify the imposition of sanctions for its publication. The Bucharest Court of Appeal rejected Mr Gîrleanu’s complaint as ill-founded since he had transmitted the CD containing secret information to other people he knew, instead of handing it over to the competent authorities (i.e. the Ministry of Defence or the Romanian Intelligence Service). The Court held, in particular, that “[t]he freedom of the press invoked by the accused cannot give a journalist the right to make public, to unofficial people, secret military information, because this may endanger the right to safety of certain military structures.” [para. 31]
Mr. Gîrleanu’s appeal against the decision was rejected by the High Court of Cassation and Justice. It held that, since the information in question had not been in the public domain, journalists coming into possession of such information were obliged to submit it to the competent authorities and were only permitted to make public the failure of the institution concerned to protect its confidentiality. It reasoned that since Mr. Gîrleanu failed to act in this way, he had committed a crime. It went on to comment that the prosecutor was correct in deciding that the crime had not attained the degree of seriousness required for criminal sanctions to be imposed.
Relying on Article 10 of the European Convention on Human Rights (freedom of expression), Mr. Gîrleanu alleged that the measures against him were disproportionate as the acts for which he had been investigated and sanctioned were part of a journalistic investigation that he had undertaken in order to determine whether the information was true and of public interest.
The European Court of Human Rights (Court) began by identifying whether there had been an interference with the right to freedom of expression in the present case. In this regard, the Court observed that it was in his capacity as an investigative journalist that Mr. Gîrleanu received the secret information from a fellow journalist. He then contacted the authority which had produced the documents, his colleagues, as well as other authorities and people who, Mr. Gîrleanu believed, had knowledge about the subject. Therefore, those actions were part of a journalistic investigation. The Court also noted that he was arrested, investigated and fined for gathering and sharing secret information. In light of this, the Court found Article 10 of the European Convention on Human Rights (Convention), which protects the right to freedom of expression, to be applicable in this case.
The Court accepted that the interference had had a legal basis in domestic law, namely the legal framework on national security. The Court saw no reason to question the domestic courts’ interpretation of the legislation on national security and, therefore, accepted that the interference was “prescribed by law” in accordance with Article 10 of the Convention. The Court also found that the Government was entitled to invoke the “legitimate aim” of protecting national security. It noted that considerations of national security featured prominently in all the decisions adopted by the authorities in the case. It was left for the Court to determine whether the interference was “necessary in a democratic society”.
The Court first considered the interests at stake. The Court held that the documents in Mr. Gîrleanu’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 recalled the principle adopted in Resolution 1551 (2007) of the Parliamentary Assembly of the Council of Europe on fair trial issues in criminal cases concerning espionage or divulging State secrets, “whereby publication of documents is the rule and classification the exception”. [para. 88] The Court then considered the interests the domestic authorities sought to protect. The Court noted that it had to ascertain whether Mr. Gîrleanu’s actions were, at the relevant time, capable of causing “considerable damage” to national security. [para. 89] The Court agreed that secret information concerning military operations in a conflict zone should be protected. Nonetheless, in the present case, the documents had been de-classified after the beginning of the investigation. Under these circumstances, the Court held that the Government failed to demonstrate that the gathering and the disclosure of the information by Mr. Gîrleanu had been liable to cause considerable damage to national security.
The Court then looked at Mr. Gîrleanu’s conduct. The Court underlined that Mr. Gîrleanu was not a member of the armed forces on which specific “duties” and “responsibilities” were incumbent. Moreover, the journalist had not obtained the information in question by unlawful means and the investigation failed to prove that he had actively sought to obtain such information. Furthermore, the Court noted that he first tried to discuss the information with the institution concerned by the leak.
The Court went on to note that the domestic courts failed to take into account these aspects of Mr Gîrleanu’s conduct. Furthermore, the domestic courts did not fully consider whether the relevant information could actually have posed a threat to national security or military structures. Moreover, the Court held that “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.” [para. 95]
As for the penalty imposed, the Court shared the Government’s view that the amount of the fine appeared to be relatively low. Nonetheless, the Court reiterated the principle that a person’s conviction may in some cases be more important than the minor nature of the penalty imposed. The Court also considered it relevant that the sanctions were imposed before publication of the secret information in question and had the purpose of preventing him from publishing and sharing the secret documents he had in his possession. The Court added that after the de-classification of the documents and the prosecutor’s finding that they were outdated and not likely to endanger national security, “the decision whether to impose any sanctions against [Mr. Gîrleanu] should have been more thoroughly weighed.” [para.98]
The Court concluded that the measures taken against Mr. Gîrleanu were not proportionate to the aim pursued and, consequently, there had been a violation of Article 10 of the Convention. As for damages, the Court awarded Mr. Gîrleanu EUR 4,500 in respect of non-pecuniary damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression since the European Court of Human Rights (Court) ruled that arresting and fining a journalist for obtaining and sharing information related to national security violated his right to freedom of expression. This is a significant case since most judgments from the European Court of Human Rights on the leaking of secret military documents concern disclosure by individuals who hold positions within the military. This case concerned a journalist, and the Court placed considerable emphasis on the fact that he was a passive recipient of the leaked documents and had taken steps to discuss the documents with the state institution that was concerned with the leak. The Court also noted that, although the documents were classified at one point, there was no evidence that the journalist’s disclosure of the documents was liable to cause considerable damage to national security. This is important jurisprudence for journalists who might face prosecution under official secrets legislation for handling classified documents.
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.
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