Journalist access to state archives. The revocation of his accreditation due to breach of personal data did not violate his freedom of expression
JUDGMENT
Gafiuc v. Romania 15.10.2020 (app. no. 59174/13)
SUMMARY
The case concerned the withdrawal of the accreditation granted to a journalist to study the archives
of the Securitate in order to conduct research into sports activities under the communist regime. In
June and July 2009 the journalist published several articles in which he disclosed information about
certain well-known sports figures.
The Court noted that the obligation on the applicant to protect the personal data held by the public
authorities had been foreseeable, and that the withdrawal of accreditation in the event of failure to
comply with the strictly scientific use of the documents had been provided for in the regulations of
the National Council for the Study of Securitate Archives (CNSAS).
The Court reiterated that the freedom of expression secured by Article 10 was not unlimited. It could
be restricted in order to protect the rights and freedoms of others.
Thus, the Court considered it reasonable and legitimate for the CNSAS to have ruled that the
applicant’s failure to comply with his legal obligations had irremediably compromised the
relationship of trust that ought to exist between that institution and the persons who were granted
authorisation to consult its files. In the Court’s view, the withdrawal of accreditation had not been
disproportionate.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Justin Paul Gafiuc, is a Romanian national who was born in 1975 and lives in
Bucharest. At the relevant time, Mr Gafiuc was a sports journalist with the newspaper Gazeta
Sporturilor. The case concerns the withdrawal of the accreditation granted to him to study the
archives of the Securitate in order to conduct research into sports activities under the communist
regime.
In 2005 the National Council for the Study of Securitate Archives (“the CNSAS”) authorised Mr Gafiuc
to access its archives as a researcher for the purpose of studying sport in Romania during the
communist era. In June and July 2009 Mr Gafiuc published six articles, in which he disclosed
information about certain well-known sports figures.
On 21 July 2009 the management board of the CNSAS withdrew the applicant’s accreditation, on the
grounds that in some of the articles Mr Gafiuc had failed to comply with the legal obligation to
protect the private and family life of the persons referred to in Securitate documents. Mr Gafiuc
requested the board to reconsider its decision, without success.
On 5 October 2009 Mr Gafiuc brought an administrative action in the Court of Appeal against the
CNSAS’s decision. The court dismissed the application as being unfounded and held that Mr Gafiuc
had failed to comply with his obligations under Article 28 § 3 of Government Emergency Ordinance
no. 24/2008 on citizens’ access to their personal files and the disclosure (deconspirarea) of
Securitate documents, and under Rule 39 §§ 1, 2, 5 and 7 of the CNSAS Rules. Mr Gafiuc appealed
against that judgment.
In a final judgment of 14 March 2013 the High Court dismissed the applicant’s appeal. It confirmed
that the summary records contested by Mr Gafiuc constituted administrative acts, that Mr Gafiuc
had not duly protected the private and family life of the persons referred to in the Securitate files
and that the decision to withdraw his accreditation had a legal basis in the general provisions of Law
no. 677/2001.
THE DECISION OF THE COURT…
Article 10
The Court noted that it was clear from the CNSAS’s summary record of 21 July 2009 and the Court of
Appeal’s judgment of 20 September 2011 that the decision to withdraw the accreditation had been
based on Article 28 §§ 1 and 3 of Government Emergency Ordinance no. 24/2008 and on Rule
39 §§ 1, 2, 5 and 7 of the CNSAS Rules. Both the management board of the CNSAS and the High
Court had also pointed out that the applicant had breached the provisions of General Law
no. 667/2001 on the protection of individuals with regard to the processing of personal data. The
Court noted that the provisions in the Government Emergency Ordinance and the CNSAS Rules
imposed an obligation on individuals who were granted authorisation to access the Securitate
archives to protect the private and family life of persons who had been persecuted by the State
security bodies, in accordance with the provisions of Law no. 667/2001. The CNSAS regulations also
provided for the withdrawal of accreditation from persons who used the documents made available
to them for purposes that were not strictly scientific. Law no. 667/2001 ensured general protection
of all the personal data held by the State authorities.
The Court saw no reason to call into question the findings of the domestic courts. In addition, it
noted that section 5 §§ 1, 2 and 3 of Law no. 677/2001 indicated that personal data could only be
processed with the express and unambiguous consent of the person concerned.
In consequence, the Court considered that the obligation on the applicant to ensure protection of
the personal data held by the public authorities had been foreseeable and that the withdrawal of
accreditation in the event of failure to comply with the instruction on strictly scientific use had been
provided for in the CNSAS Rules.
The Court concluded that the interference had been “prescribed by law”.
With regard to the aim of the interference, the Court noted that the applicant in the present case
had requested access to the Securitate archives in order to gather information for the purpose of
historical research. The documents studied contained information about individuals who had been
placed under surveillance by the political police or who had collaborated with it. The Court
considered it reasonable for a public authority with responsibility for managing files containing
information about private individuals to provide guarantees in its regulations, in order to protect the
fundamental rights of those individuals. Furthermore, Law no. 677/2001 protected individuals with
regard to the processing and free movement of personal data.
Accordingly, in view of the legal obligation on all public authorities to protect the personal data held
by them, the Court considered that the Government were entitled to invoke the legitimate aim of
the protection of the rights of others, although the persons concerned had not themselves lodged
complaints.
With regard to the necessity of the interference, the Court noted that the applicant had disclosed in
press articles material about individuals who had collaborated with the political police by providing
information about various sports figures. The material disclosed to the public described actions
relating to the private sphere or the moral integrity of those persons. Moreover, the applicant had
named the individuals in question. The information did not relate to athletic performance, had not
been made public by the persons concerned, and was not otherwise accessible to the public, who
had no means of verifying its accuracy. Those persons were entitled to expect, both from the
authorities and from the applicant who had been granted access to the information, protection of
their right to respect for their private life.
The Court reiterated that the freedom of expression secured by Article 10 was not unlimited. It could
be restricted in order to protect the rights and freedoms of others.
In the present case, the applicant had chosen not to carry out an academic study of the information
obtained from the Securitate archives, but to disclose it in “raw” form, without assessing its
relevance in the light of the declared aim of his research: sport in Romania under the communist
regime. Rather than filtering this information, he had revealed to the public aspects of the private
life of sports figures, information that could in no way contribute to a debate of public interest.
The applicant had been able to apply to the national courts to challenge the withdrawal of his
accreditation. Those courts had found that he had breached his obligation to protect the private life
of the persons persecuted by the Securitate and that he had departed from the aim of the research
for which accreditation had been granted. The consequence of the applicant’s failure to comply with
his legal obligations had been the withdrawal of his accreditation. The Court noted, however, that
this had not prevented him from continuing to work as a journalist.
Thus, the Court considered it reasonable and legitimate for the CNSAS to have ruled that the
applicant’s failure to comply with his legal obligations had irremediably compromised the
relationship of trust that ought to exist between that institution and the persons who were granted
authorisation to consult its files. In the Court’s view, the withdrawal of accreditation had not been
disproportionate.
The Court considered that the interference with the applicant’s right to freedom of expression had
been supported by relevant and sufficient reasons and that the authorities had struck a fair balance
between the competing interests, thus acting within their margin of appreciation.
It followed that there had been no violation of Article 10 of the Convention.
