We bring together information on the legal frameworks for the right to information from more than 100 countries.
You are here: Home Cases Bucur and Toma v. Romania

Bucur and Toma v. Romania

Case number:
40238/02
Country:
Romania
Date of decision:
8 January 2013
Court / Arbiter:
European Court of Human Rights ( International / ECHR )

Relevant law :
European Convention of Human Rights, Article 10 (freedom of expression), Article 6 (right to fair trial), Article 8 (right to respect for private and family life and correspondence), Article 13 (right to an effective remedy), Article 41 (damages). ( Other Law )

Decision:

The criminal conviction of a public employee for revealing, in a high-profile press conference, irregularities in a government wiretapping intelligence program amounts to a violation of freedom of expression under Article 10 of the European Convention of Human Rights.


Keywords:
Fair hearing / Trial
National security (including defense, intelligence, state security, state secrets, secrecy laws)
Privacy (harm to private interests, including life, health, safety)
Public interest (including public interest override, information of public interest)
Security sector (including intelligence bodies, military, police)
Whistleblower

Case details:

Facts

In 1996, Constantin Bucur, an employee in the Romanian Intelligence Service (SRI) responsible for monitoring and recording the wiretapped telephone communications of persons listed on a certain registry, noticed several irregularities in the records (paras. 7-8). Completed entirely in pencil, the records offered no justification for wiretapping of several journalists, politicians, and businessmen (para. 8). Bucur brought these irregularities to the attention of the head of the department, who reprimanded Bucur for broaching the issue (para. 9). Bucur then contacted T.C., a member of the Parliamentary Commission for the Control of the SRI (para. 10). T.C. claimed that bringing the issue before the House of Representatives could only delay an investigation into the director’s actions and therefore recommended that Bucur reveal his findings in a press conference (para. 10). On 13 May 1996, Bucur held a press conference, in which he made public eleven audio cassettes containing telephone communications of several journalists and politicians (paras. 10-11). The press conference made headlines worldwide.

On 31 July 1996, criminal proceedings were instituted against Bucur in a military court for having collected and transmitted secret information, in violation of Article 19 of Act No. 51/1991, and having disclosed and illegally used information obtained in the exercise of its functions relating to the privacy of others, in violation of Article 21 of the same Act (para. 19). Bucur was later also charged with theft of the audio cassettes (para. 20). Bucur requested several pieces of information, including an interview with the director of the SRI where the director claimed that the alleged victims had not been bugged, but the military prosecutor rejected Bucur’s requests without providing reasons (para. 21). Bucur continued to request information from the SRI that could support his claims (para. 30) but the military court decided that Bucur’s requests were, for the most part, irrelevant (para. 32). Bucur defended his actions by arguing that the disclosed information did not constitute state secrets but rather evidence of attempted political manipulation by the SRI (para. 11). Bucur also argued that a violation of Article 19 requires that there be an intent to participate in activities that threaten national security, whereas he had been acting in good faith (para. 40).

On 11 April 1997, the court heard witness Micea Toma, a journalist who claimed his rights had been violated when the SRI wiretapped his home phones and denounced the prosecution’s refusal to conduct a proper investigation (para. 34). One of the cassettes Bucur made public also featured Toma’s daughter, a third applicant in the suit.

On 20 October 1998, the military court sentenced Bucur to two years of imprisonment for theft and illegal disclosure of secret information or information relating to privacy, honor and reputation (para. 41). The court observed that Bucur had failed to take the issue directly to the SRI or the Parliamentary Commission for the Control of the SRI; nor had Bucur acted wholly in good faith when he agreed with T.C. to unveil the contents of the eleven tapes to the public (para. 41). The Military court of Appeal upheld the judgment at first instance (para. 45) and. the Supreme Court dismissed the appeal.

Bucur and Toma applied to the European court of Human Rights. Bucur claimed that his criminal conviction interfered with his freedom to expression under Article 10 of the European Convention of Human Rights (the Convention) (paras. 74, 77) and that the lack of impartiality in the military court violated his right to a fair trial under Article 6 (para. 121). Toma and his daughter alleged that the government violated their Article 8 right to respect for private and family life and correspondence because personal conversations at their home had been made public (para. 152). All three applicants claimed Article 13 violations of their rights to an effective remedy (para. 166).

Decision

The court concluded that the domestic law relied upon by the Government was not sufficiently predictable to be prescribed by law (para. 82). And while the Government’s professed aim—preventing and punishing offenses related to national security—was legitimate (para. 82), interference was not necessary in a democratic society when the information imparted was of such significant public importance (para. 120). The court added that Bucur had legitimate grounds for believing that the information he disclosed was true (para. 113), that the public interest in disclosing illegal SRI conduct outweighed the interest of maintaining public confidence in the SRI (para. 115), and that Bucur had acted in good faith (para. 118).

As to Article 6, the court agreed with Bucur that he had been unlawfully refused access to crucial evidence that would have verified the authenticity of his claims against the SRI. In rejecting Bucur’s requests for information as irrelevant, the military courts failed to consider whether the interest of maintaining the secrecy of the information outweighed the public interest to know of the alleged unlawful conduct (para. 131). However, the Court did not agree with Bucur’s other Article 6 claim concerning the lack of impartiality of the military courts, and found that the right to be tried by an objectively impartial tribunal had been met, since the military courts at the time of Bucur’s trial ensured the same constitutional guarantees as civilian courts (paras. 140-141).

Finally, the court agreed with Toma and his daughter that the government had not afforded sufficient protection of their Article 8 right to privacy and respect for family life (para. 164). Although the SRI had some procedures regarding when a wiretapped conversation would be destroyed when it no longer serves a purpose, those procedures still allowed a substantial risk that those conversations would not be destroyed and could thus be easily accessible at a later time (para. 164). The government also failed to provide an effective remedy to Toma and his daughter in violation of Article 13 of the Convention  since there was no provision in Romanian law that allowed Toma and his daughter to challenge the SRI’s arbitrary retention of their personal data (para. 173).

Resources:

Judgment of the Court (available in French only).

Global Principles on National Security and the Right to Information ("The Tshwane Principles").