ECHR decided against Romania for violation of its obligation to cooperate with the European Court and for breech of Articles 6, 8, 10 and 13 in the Bucur and Toma case.

Tuesday - 8 January 2013
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On January 8, 2013, the European Court of Human Rights (henceforward the Court) issued a judgment in the case Bucur and Toma v. Romania , retaining that the Romanian state was in breech of Article 38 (obligation to cooperate with the Court), of Article 6 (the right to a fair trial), of Article 10 (the right to freedom of expression), of Article 8 (right to respect for private and family life) and of A rticle 13 (right to an effective remedy) of the European Convention on Human Rights. APADOR-CH supported the court actions, through its solicitors.

The case involved three plaintiffs. The first one, Constantin Bucur, was employed by the Romanian intelligence Service (SRI) in the phone surveillance department. From that position, he learned about illegal phone interceptions by the SRI and, in 1996, organized a press conference releasing several audio recordings of phone conversations by politicians, journalists, minors and other persons, as a proof of the illegal surveillance he had noted. Later, the first plaintiff was convicted by a military court for having taken the audio recordings and for having released information he had received as part of his job.

The second plaintiff, Mircea Toma, is one of the journalists placed under surveillance by the SRI, whose phone conversations were part of the audio materials released by the first plaintiff in his press conference. The third plaintiff, Sorana Toma, is the second plaintiff’s daughter and was underage at the time when her conversations were taped by the SRI.

APADOR-CH points out that a State in breech of Article 38 of the Convention (meaning the refusal of that state to cooperate with the ECHR) is a very rare instance, completely unspecific for member country of the EU and a state of law. More precisely, the Court retained that Romania refused to provide all the documents required for solving the case, on the grounds that some of them were classified as state secret and therefore the Court could not access them . The Court mentioned in its judgment that, in fact, in ratifying the Convention, the Romanian state took the obligation to furnish all necessary facilities for the complete examination of an ECHR case, including declassifying documents (paragraphs 72-73 of the Court judgment).

For the first plaintiff, the Court retained the breech of Article 6 (the right to a fair trial), Article 10 (freedom of expression) and Article 13 (effective remedy) of the European Convention for Human Rights.

Essentially, the Court appreciated that the first plaintiff was wrongly convicted for divulging information, when in fact he was presenting to the public, in good faith, a number of illegalities. The court decided that the general interest in making illicit actions of the SRI known to the public is more important that the interest of maintaining the public trust for SRI. Also, the Court decided the national courts convicted the first plaintiff following an unfair trial, during which essential evidence for the defense was rejected by a partial panel.

With regard to the other two plaintiffs, the Court retained the breech of Article 8 (right to respect for private and family life) and of Article 13 (effective remedy) of the European Convention on Human Rights.

Essentially, the court decided that the Law on national security did not include any guarantees against arbitrary surveillance, or any guarantees that information obtained during surveillance were destroyed ex officio as soon as they were no longer necessary for the purpose they were initially collected. The absence of such guarantees represented a violation of the right to private life . Also, the Court noted that there were no legal provisions to ensure a person’s control over the data and information a secret service collected and stocked on them.

APADOR-CH points out that the recent ECHR judgment is extremely important in the context of the expected debates on the national security law package, because the Romanian authorities are under the obligation to pass such provisions as to ensure that such cases cannot happen again in Romania.

The full text of the judgment is available on the ECHR website at www.echr.coe.int .

For further information: Diana-Olivia Hatneanu, APADOR-CH executive director (0722 467 034, 021 312 45 28).