How the ECHR defended the freedom of speech of a whistleblower who warned of illegitimate wiretapping by a secret service

It took the European Court of Human Rights 11 years to give its judgment in the case of Bucur and Toma v. Romania, the case of a whistleblower from the Romanian Intelligence Service (SRI) who warned the public in 1996 about the arbitrary wiretapping of journalists and other people by the service (Bucur) and one of the wiretapped journalists and his daughter (Toma and Toma).

The facts of the case have certain similarities to the “Snowden revelations” situation, in that it involves a whistleblower from a secret service which has powers in the field of national security, who warned the public that the service was arbitrarily interfering with the private life (especially, but not only) of journalists, businessmen and politicians, by wiretapping their phones. The decision of the ECHR is interesting because it is dual: it analyzes the situation of the whistleblower, as well as the situation of two individuals who were arbitrarily wiretapped.

ECHR gave its judgment on January 8, 2013, while the request was sent in 2002 (No. 40238/02). It found that, by sentencing Mr. Bucur to 2 years of imprisonment for his revelations for breaching the national security law, Romania had breached Article 10 – freedom of expression, of the European Convention of Human Rights. In addition, the Court found that by allowing the arbitrary wiretapping of Mr. Toma and his daughter, according to Mr. Bucur’s revelations, Romania had breached Article 8 – the right to private life, of the Convention.

Following the decision of the Court, Mr. Bucur received 20.000 EUR as a compensation for moral damages, and Mr. Toma and his daughter each received 7.800 EUR.

What did Mr. Bucur’s revelations say?

Mr. Bucur was an employee of SRI, responsible for monitoring and recording the wiretapped telephone communication of persons listed on a certain registry.

Within the framework of his activity, Mr. Bucur observed several irregularities: pencil was used to write in all the sections of the registry, a registry which was not complete; the real names of the wiretapped persons did not appear in the registry, nor the number of the order to wiretap issued by the prosecutor, the location of the wiretapped telephone, and the purposes of the wiretapping (para. 8). He also observed that the name in the registry did not always indicate the actual owner of the telephone (para. 8). “Furthermore, a considerable number of journalists, politicians and businessmen were wiretapped, especially with regard to resounding stories published by the press” (para. 8 – my translation).

Mr. Bucur took the issue to the head of the department, who reprimanded him: “(the head of the department) had advised him to give up his allegations and reminded him he had other problems and had children to raise, and he reportedly said: <<it is not us who will change how things are>>” (para. 9 – my translation).

Mr. Bucur further took the issue to a member of the Parliamentary Commission of the Control of SRI, who advised him that the best and quickest means to inform the public with regard to these issues is to hold a press conference (para. 10), which Mr. Bucur did on 13 May 1996.

Justification of his actions

According to the Court, he justified his actions by his wish to have Romanian laws complied with, and especially the Constitution. He mentioned that the disclosed information was not state secret, but the proof that SRI was involved in activities of political police, by order of the service’s chief, during a year of parliamentary and presidential elections. He also said that the beneficiaries of the arbitrary wiretapping were only the governing political party, and other political parties for their internal affairs. (para. 10).

Who is Mr. Bucur?

Unlike Mr. Snowden, Mr. Bucur had considerable experience for working in a secret service and surveilling people. He was 44 years old at the time of the revelations. Before working for SRI, he was an employee of the former Securitate forces under the Communist regime of Nicolae Ceauşescu, which was replaced in 1989 by a democratic regime after the Revolution.

In a 2009 interview for the French newspaper L’Express, he admitted that he decided to give this information to the public because he felt that the surveillance in 1995 Romania was even more arbitrary than what happened during the Communist regime: “In 1995 I woke up when I saw the name of many journalists, working for the daily newspapers “Ziua”, “Evenimentul Zilei”, on the list of persons whose conversations were listened to. In 1989, when I was listening to a sportsman, I had to ask for 5 authorizations, I had to make tones of administrative paperwork… In 1995, there was no more such an official aspect (of surveilling – my note): they would give me a piece of paper with the name of the person written with a pencil”.

What did the Court say with regard to Mr. Bucur’s freedom of expression?

The Decision of the Court is ample – having 182 paragraphs, and it is only available in French and Romanian. I will only point out to a few highlights.

-> In deciding whether the interference with Mr. Bucur’s right to freedom of expression was necessary in a democratic society, the Court applied the criteria with regard to public servants whistleblowers, developed in its Guja v. Moldova case (No. 14277, from February 12, 2008, paras. 70-78). The criteria are (NB: this is my translation, not an official one):

a) whether the applicant had other means to make the revelations

b) whether the information revealed was in the public interest

c) whether the information revealed is authentic

d) whether the information revealed caused “considerable damage” to the institution

e) whether the whistleblower acted with good faith

f) whether the sanction brought by the state against the whistleblower was severe

-> The Court found, regarding the public interest of the revelations, that: “the information revealed by the applicant is undoubtedly of public interest. The interception of telephone communications is particularly important in a society which has experienced during the communist regime a close surveilling by the secret services. This [the public interest – n.] is also proven by the fact that the press conference of 13 May 1996 was the subject of extensive media coverage, as evidenced by the documents filed by both the applicant and the Government. In addition, civil society was directly affected by the information disclosed, as anyone could have their telephone calls intercepted”. (para 101, my translation).

-> The Court, on the damage brought to the institution, balanced against the public interest: “the Court considers that the public interest in the disclosure of unlawful acts within the activity of SRI is so important in a democratic society that it outweighs the interest to maintain the trust of the public in this institution. The Court recalls in this regard that the free debate on issues of public interest is essential in a democratic state and it is important notto  discourage citizens to decide on such issues (Barfod c. Denmark, 22 February 1989 § 29, Series A No. 149)” (para. 115, my translation).

-> Conclusion of the Court: “Recognizing the importance of the right to freedom of expression on matters of public interest, the right of civil servants and other employees to signal unlawful conducts and actions observed within their working place, the duties and responsibility of employees owed to their employers and the right of the latter to manage their staff, the Court, after weighing in the other interests involved, concludes that the interference with the right to freedom of expression of the applicant, in particular his right to communicate information, is not “necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention” (para 120, my translation).

What did the Court say with regard to the right to private life of the wiretapped journalist and his daughter?

The Court only declared admissible the request of Mr. and Ms. Toma with regard to the storage of the files containing recorded telephone conversations (tapes) by SRI, and not the request regarding the wiretapping itself, which was found to have been filed too late, outside the 6 months term required by the Convention.

The Court recalled that “the telephonic communications are comprised in the notions of <<private life>> and <<correspondence>> as enshrined in Article 8(1) of the Convention, their interception, their storage in a secret file, and the communication of data related to the private life of an individual amount to an <<interference of a public authority>> in the exercise of the right guaranteed by Article 8 (see, among others, Dumitru Popescu v. Romania (No. 2), para. 61). For such an interference not to breach Article 8, it should be afforded by law, pursue a legitimate aim in accordance with Article 8(2) and, in addition, it must be necessary in a democratic society to achieve this aim” (para. 162 – my translation).

Among other things, the Court found that although SRI had some procedures regarding the time when a wiretapped conversation will be destroyed when it no longer serves a purpose, the procedures allowed a substantial risk that the conversations would not be destroyed and, thus, could be easily accessible at a later time (para. 164, as synthesized by right2info.org).

The Court considered that the applicants did not enjoy “a sufficient degree of protection against arbitrariness, as requested by Article 8 of the Convention” (para. 165 – my translation).

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One response to “How the ECHR defended the freedom of speech of a whistleblower who warned of illegitimate wiretapping by a secret service

  1. Pingback: Defending Journalism in the Post-truth Era - Netopia Netopia

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