Submission before the Committee of Ministers in respect to the case of Bucur and Toma v. Romania (Application No. 40238/02)

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The case of Bucur and Toma v. Romania (Application No. 40238/02) placed under examination by the Committee of Ministers of the Council of Europe for the 1419th meeting (30 November – 2 December 2021), concern the lack of safeguards in the statutory framework governing secret surveillance.

Through the present submission APADOR-CH would like to provide the Committee of Ministers with additional information on this issue. Currently, in Romania, the Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law is being transposed, The Ministry of Justice draft law for the transposition of the Directive provides for some cases for the exemption of liability of whistleblowers. However, these cases do not operate in any form if the information disclosed was acquired or accessed by committing an offence.

This condition provided in the draft law, as well as in the Directive, that the information or evidence must not be obtained by committing a crime, brings back into discussion a problem raised in the case of Bucur and Toma v. Romania. In that case, the applicant Bucur had to take several audio tapes from the workplace which contained illegal recordings, in order to provide evidence for his allegations regarding the illegal recordings. In the absence of this evidence, which he presented to the public, the complainant would not have been able to prove the accusations he was bringing in connection with the carrying out of illegal recordings by the information service where he was working. However, a criminal file was drawn up for Bucur and he was convicted for stealing those audio tapes from his workplace.

If we would apply this situation to the provisions of the draft law for the transposition of the Directive, the result would be that even after the draft law is adopted, a whistleblower in the situation of Bucur would not be protected by law, as it will be considered that the evidence in support of the warning was obtained through an offence (theft).

Therefore, APADOR-CH considers that the text of the draft law should be supplemented with a provision in the sense that it does not constitute an offence to acquire evidence in support of the warning in the public interest. Such a provision would also provide security for any person wishing to make a public interest warning, in the way that he will not be exposed to the risk of a criminal conviction if he owns documents or recordings from the work place in order to use them as evidence in support of the warning he makes.

There are situations in which the whistleblower needs evidence for his statements / disclosures, evidence that may consist of documents that do not belong to him, data stored on electronic media (computer data) to which he has no right of access, audio/video recordings etc. What real alternative can a well-intended whistleblower who needs evidence (and who will surely be asked by everyone for evidence) for his statements has? If he does not provide evidence, he will be discredited and probably excluded from legal protection on the grounds that he makes uncovered statements. If he provides evidence, to which, in most cases, he has no legal access, he will commit one or more offenses, he will be excluded from the protection provided by the law of whistleblowers. The national example of such a case was presented in the ECHR judgment in Bucur and Toma v. Romania.

At this moment, after 25 years from the events in Bucur case (1996) and about 8 years from the date of the ECHR decision in this case (2013), a similar and poor regulation is proposed regarding the offenses committed by a whistleblower. However, APADORCH considers that it would not be contrary to the Directive and it would be particularly useful a provision stating that it is not an offense for the whistleblower to access or provide the evidence necessary to support and to prove a public interest warning.

At this time, in the current technological conditions, the relevant information is no longer stored on audio tapes, but on other data storage media (DVD, BluRay, internal or external hard disks, flash memories, etc.). Some of these items may contain important data / information about violations of the law. The question is whether accessing / storing this data / information or taking the media on which this data / information is stored and using it as evidence in the event of a public interest warning, when there is virtually no other solution, should or should not be qualified as an offence. APADORCH doesn’t consider it an offence if the whistleblower took/accessed them for the purpose of the public interest warning.

For these reasons, APADOR-CH recommends that, following art. 20 al. 2 of the project law to introduce a new thesis, containing a provision that would allow access to evidence necessary for a warning in the public interest. Thus the text of art. 20 al. 2 would have the following content:

“(2) The whistleblower shall not be liable for the acquirement of information that is reported or disclosed to the public or for the access to it, under the condition that such acquisition or such access does not constitute an offense. It is not an offense for the whistleblower to access or store any data or information belonging to the entity where he works or to acquire from the entity where he works documents or physical media on which data are stored, if the purpose of access, storage or acquirement was to establish evidence of law violations which he reported or disclosed publicly in accordance with this law. Also, it is not an offense of the whistleblower to disclose any classified or confidential data or information, if the disclosure was necessary for reporting a law violation, under the conditions provided by this law.”

APADOR-CH considers that the inclusion of this provision in the draft law would, along with other recommendations, improve the protection system for whistleblowers and would lead to a successful execution of the Bucur and Toma case.