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GRAND
CHAMBER
CASE OF
GUJA v. MOLDOVA
(Application
no. 14277/04)
JUDGMENT
STRASBOURG
12
February 2008
This
judgment is final but may be subject to editorial revision.
In the case of Guja v. Moldova,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul
Costa, President,
Christos
Rozakis,
Nicolas
Bratza,
Boštjan M. Zupančič,
Peer
Lorenzen,
Francoise Tulkens,
Giovanni Bonello,
Josep
Casadevall,
Rait Maruste,
Kristaq Traja,
Snejana
Botoucharova,
Stanislav Pavlovschi,
Lech Garlicki,
Alvina
Gyulumyan,
Ljiljana Mijović,
Mark Villiger,
Päivi
Hirvelä, judges,
and Erik
Fribergh, Registrar,
Having
deliberated in private on 6 June 2007 and 9 January 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 14277/04) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Iacob Guja (“the applicant”) on
30 March 2004.
- The
applicant was represented by Mr V. Gribincea and Mr V. Zamă,
lawyers practising in Chişinău and members of the
non-governmental organisation “Lawyers for Human Rights”.
The Moldovan Government (“the Government”) were
represented by their Agents, Mr V. Pârlog and Mr V. Grosu.
- The
applicant alleged a breach of his right to freedom of expression
under Article 10 of the Convention, in particular the right to impart
information, as a result of his dismissal from the Prosecutor
General's Office for divulging two documents which in his opinion
disclosed interference by a high-ranking politician in pending
criminal proceedings.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 28 March 2006 a Chamber of that
Section decided to give notice of the application to the Government.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility. On 20 February 2007 a Chamber composed of
Nicolas Bratza, President, Josep Casadevall, Giovanni Bonello,
Ljiljana Mijović,
Kristaq Traja, Stanislav
Pavlovschi and Lech Garlicki, judges, and also of
Lawrence Early, Section Registrar, relinquished jurisdiction
in favour of the Grand Chamber, neither of the parties having
objected to relinquishment (Article 30 of the Convention and Rule
72).
- The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
- The
applicant and the Government each filed observations on the
admissibility and merits. The parties replied in writing to each
other's observations.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 6 June 2007 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr V.
Grosu, Agent,
Mr G.
Zamisnîi, Adviser;
(b) for the applicant
Mr V.
Gribincea,
Mr V. Zamă,
Counsel,
Mr I.
Guja, Applicant.
The
Court heard addresses by Mr Grosu, Mr Gribincea and Mr Zamă.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Iacob Guja, was born in 1970 and lives in Chişinău.
At the material time he was the Head of the Press Department of the
Prosecutor General's Office.
1. Background to the case
- On 21 February 2002 four police officers (M.I., B.A.,
I.P. and G.V.) arrested ten persons suspected of offences related to
the Parliamentary elections; one of them was also suspected of being
the leader of a criminal gang. Later the suspects were released from
detention and complained to the Prosecutor's Office of ill-treatment
and illegal detention by the four police officers. As a result of
their complaint a criminal investigation was initiated against the
police officers on charges of, inter alia, ill-treatment
and unlawful detention.
- In June 2002 the four police officers wrote letters,
which they signed jointly, to President Voronin, Prime Minister
Tarlev and Deputy Speaker of Parliament Mişin seeking protection
from prosecution. They set out their views on the criminal
proceedings and complained that the actions of the Prosecutor's
Office were abusive. They asked for the legality of the criminal
charges that had been brought against them to be verified. On 21 June
2002 Mr Mişin forwarded the letter he had received, with an
accompanying note, to the Prosecutor General's Office. The note was
written on the official headed notepaper of the Parliament and was
not marked as being confidential. It stated as follows:
“Dear Mr Rusu,
A question arises after reading this letter: is the
Deputy Prosecutor General fighting crime or the police? This issue is
made even more pressing by the fact that the policemen concerned are
from one of the best teams in the Ministry of Internal Affairs, whose
activity is now being blocked as a result of the efforts of employees
of the Prosecutor General's Office. I ask you to get personally
involved in this case and solve it in strict compliance with the
law.”
- In January 2003 Mr Voronin made a visit to the Centre
for Fighting Economic Crime and Corruption during which he discussed,
inter alia, the problem of the undue pressure some public
officials were putting on law-enforcement bodies in respect of
pending criminal proceedings. The President made a call to fight
corruption and asked law-enforcement officers to disregard any
attempts by public officials to put them under pressure. The
declarations of the President were made public by the media.
- On
an unspecified date the criminal proceedings against the police
officers were discontinued.
2. The leaking of the documents
- A
few days after Mr Voronin made his call to fight corruption, the
applicant sent to a newspaper, the Jurnal de Chişinău,
copies of two letters (“the letters”) that had been
received by the Prosecutor General's Office.
- The first was the note written by Mr Mişin (see
paragraph 10 above). The second had been written by Mr A. Ursachi, a
deputy minister in the Ministry of Internal Affairs, and was
addressed to a deputy prosecutor general. It was written on the
official headed notepaper of the Ministry of Internal Affairs and was
not marked confidential. It stated, inter alia:
“... Police Major M.I. [one of the four officers:
see paragraph 9 above] was convicted on 12 May 1999 ... of offences
under Articles 116(2) [illegal detention endangering life or health
or causing physical suffering], 185(2) [abuse of power accompanied by
acts of violence, the use of a firearm or torture] and 193(2)
[extracting a confession by acts of violence and insults] of the
Criminal Code and sentenced to a fine of 1440 Moldovan lei (MDL) (128
euros (EUR)). Under section 2 of the Amnesty Act, he was exempted
from paying the fine.
... on 24 October 2001, Major M.I. was reinstated in his
post at the Ministry of Internal Affairs.”
3. The article in the Jurnal
de Chişinău
- On 31 January 2003 the Jurnal de Chişinău
published an article entitled: “Vadim Mişin intimidates
the prosecutors”. The article stated inter alia:
“At the end of last week, during a meeting at the
Centre for Fighting Economic Crime and Corruption, the President
called on law-enforcement institutions to co-operate in the fight
against organised crime and corruption and asked them to ignore
telephone calls from senior public officials concerning cases that
were pending before them.
The President's initiative is not accidental. The
phenomenon has become very widespread, especially during the last few
years, and has been the subject of debate in the mass media and by
international organisations.
Recently the press reported on the case of the Communist
Parliamentarian A.J., who had attempted to influence a criminal
investigation in respect of an old friend and high-ranking official
at the Ministry of Agriculture who had been caught red-handed.
However, no legal action was taken. ...
Also, the press reported that Mr Mişin had
requested the Prosecutor General to sack two prosecutors, I.V. and
P.B. involved in the investigation into the disappearance of the
Chief of the Information Technology Department, P.D., apparently
after they had found evidence implicating Ministry of Internal
Affairs' officials in wrongdoing.
The results of the internal investigation into the
activities of these two prosecutors are not yet known. However,
sources at the Prosecutor's Office have told this newspaper that even
though I.V. and P.B. have not been found guilty, they have been asked
to leave at the insistence of someone in authority.
Now, while the declarations of the President concerning
trading in influence are still fresh in the mind, we reveal a new
investigation concerning high-ranking officials.
The Deputy Speaker of Parliament is attempting to
protect four police officers who are under criminal investigation. Mr
Mişin's affinity with policemen is not new, since his roots are
in the police force. Our sources stated that this is not the only
case in which Mr Mişin has intervened on behalf of policemen in
trouble with the law.
...
The Ciocana Prosecutor's Office initiated criminal
proceedings against four police officers ... after they had used
force during the unlawful arrest of a group of people.
... [The] police officers assaulted the detainees by
punching and kicking them... Furthermore, it was found that one of
the officers had made false statements in the police report on the
arrest... The four police officers were also being investigated for
forcibly extracting confessions...
The investigation lasted for more than a year. When it
was almost over ... the police officers started to seek protection
from those in authority.
...
On 20 June 2002 the police officers wrote letters to
President Vladimir Voronin, Prime-Minister Vasile Tarlev and the
Deputy Speaker of Parliament, Vadim Mişin, asking them to
intervene to end the investigation, which they said was unwarranted.
...
The first to react to their letter was the Deputy
Speaker of Parliament, Vadim Mişin. On 21 June 2002
... he sent the Prosecutor General a letter, in which, in a
commanding tone, he asked him personally to intervene in the case of
the four policemen. Even though he instructed the Prosecutor General
to get involved in this case 'in strict compliance with the law', the
tone of the letter clearly shows that he was giving an order to
examine the case very quickly.
As a result of the intervention of the State's most
influential figures, the Prosecutor General's Office discontinued the
criminal investigation against the policemen and ordered an internal
investigation into the correctness of the decision to bring criminal
proceedings against them...
...
... Sources from the Ministry of Internal Affairs
confirmed that the officer M.I. [one of the four policemen] had
[previously] been convicted by the Court of Appeal, and ordered to
pay a criminal fine of MDL 1,440. In accordance with the Amnesty Act,
he was exempted from paying the fine. Moreover, on 24 October 2001
... he was reinstated at the Ministry of Internal Affairs.
Without commenting on the judgment of the Court of
Appeal, we wish to make some remarks. M.I. was convicted on the basis
of Articles 116, 185 and 193 of the Criminal Code of abuse of power,
forcibly extracting confessions and unlawful detention. For these
offences, the Criminal Code lays down sentences of one to five years'
imprisonment. He was only given a fine.
Moreover, the Ministry of Internal Affairs reinstated
him while he was still under investigation.”
- The
newspaper article was accompanied by pictures of the letters signed
by Mr Mişin and Mr Ursachi.
4. The reaction of the Prosecutor General's Office
- On
an unspecified date the applicant was requested by the Prosecutor
General to explain how the two letters had come to be published by
the press.
- On 14 February 2003 the applicant wrote to the
Prosecutor General admitting that he had sent the two letters to the
newspaper. He stated inter alia:
“My act was a reaction to the declarations made by
the [President] concerning the fight against corruption and trading
in influence. I did this because I was convinced that I was helping
to fight the scourge of trading in influence (trafic de
influenţă), a phenomenon which has become increasingly
common of late.
I believed and still believe that if each of us were to
help uncover those who abuse their position in order to obstruct the
proper administration of justice, the situation would change for the
better.
Further, I consider that the letters I handed over to
the Jurnal de Chişinău were not secret. My intention
was not to do a disservice to the Prosecutor's Office, but on the
contrary to create a positive image of it.”
- On
an unspecified date a prosecutor, I.D., who was suspected of having
furnished the letters to the applicant, was dismissed.
- On 17 February 2003 the applicant wrote a further
letter to the Prosecutor General informing him that the letters had
not been obtained through I.D. He added:
“If the manner in which I acted is considered a
breach of the internal regulations, then I am the one who should bear
responsibility.
I acted in compliance with the Access to Information
Act, the Prosecuting Authorities Act and the Criminal Code. I
believed that the declarations of the [President] decrying acts of
corruption and trading in influence were sincere. To my great regret,
I note that the Prosecutor General's Office has elevated a letter
from a public official (which in my opinion is a clear example of
direct political involvement in the administration of justice) to the
status of State secret. This fact, coupled with I.D.'s dismissal,
concerns me and causes me seriously to doubt that the rule of law and
human rights are respected in the Republic of Moldova.”
- On
3 March 2003 the applicant was dismissed. The letter of dismissal
stated, inter alia, that the letters disclosed by the
applicant to the newspaper were secret and that he had failed to
consult the heads of other departments of the Prosecutor General's
Office before handing them over, in breach of sections 1.4 and 4.11
of the Internal Regulations of the Press Department (see paragraph 31
below).
5. The reinstatement proceedings brought by the
applicant
- On 21 March 2003 the applicant brought a civil action
against the Prosecutor General's Office seeking reinstatement. He
argued, inter alia, that the letters he had disclosed to the
newspaper had not been classified as secret in accordance with the
law, that he was not obliged to consult the heads of other
departments before contacting the press, that he had given the
letters to the newspaper at the newspaper's request, and that his
dismissal constituted a breach of his right to freedom of expression.
- On
16 September 2003 the Chişinău Court of Appeal dismissed
the applicant's action. It stated, inter alia, that the
applicant had breached his obligations under paragraph 1.4 of the
Internal Regulations of the Press Department by not consulting other
departmental heads and under paragraph 4.11 of the Regulations by
disclosing secret documents.
- The applicant appealed. He relied on the same
arguments as in his initial court action. He also argued that the
disclosure of the letters to the newspaper had not in any way
prejudiced his employer.
- On
26 November 2003 the Supreme Court of Justice dismissed the appeal on
the same grounds as the Chişinău Court of Appeal. Referring
to the applicant's submissions concerning freedom of expression, the
Supreme Court stated that obtaining information through the abuse of
one's position was not part of freedom of expression (dreptul la
exprimare nu presupune dobândirea informaţiei abuziv,
folosind atribuţiile de serviciu).
- Neither the Prosecutor General's Office nor the Deputy
Speaker of Parliament Mr Mişin appear to have contested the
authenticity of the letters published in the Jurnal de Chişinău
or the truthfulness of the information contained in the article of 31
January 2003 or to have taken any further action.
6. The criminal complaint by the Jurnal
de Chişinău
- Since the Prosecutor General's Office did not react in
the manner the Jurnal de Chişinău had anticipated
after the publication of the article on 31 January 2003 (see
paragraph 15 above), the latter initiated court proceedings for an
order requiring the Prosecutor General's Office to initiate a
criminal investigation into the alleged interference by Mr Mişin
with an ongoing criminal investigation. The newspaper argued, inter
alia, that under the Code of Criminal Procedure, newspaper
articles and letters published in newspapers could serve as a basis
for the institution of criminal proceedings and that the Prosecutor
General was under a duty to order an investigation.
- The
newspaper's action was dismissed by the Râşcani District
Court on 25 March 2003 and by the Chişinău Regional Court
on 9 April 2003. The courts found, inter alia, that the
newspaper did not have legal standing to lodge a complaint and that,
in any event, the article of 31 January 2003 was merely a newspaper
article expressing a personal point of view, not an official request
to initiate a criminal investigation.
7. The follow-up article by the Jurnal
de Chişinău
- On 14 March 2003 the Jurnal de Chişinău
published a follow-up to its article of 31 January 2003, entitled
“Mişin has launched a crackdown on prosecutors”. The
piece described the events that had followed the publication of the
first article and stated that Mr Mişin had been infuriated by
the article and had ordered the Prosecutor General to identify and
punish those responsible for disclosing his note to the press. The
Prosecutor General had acquiesced and declared war on subordinates
who refused to tolerate political intervention in the workings of the
criminal-justice system. The article stated that the actions of the
Prosecutor General were in line with the general trend that had been
observed in recent years of replacing people with considerable
professional experience who were not prepared to comply with the
rules instituted by the new Government with people from dubious
backgrounds. It claimed that sources from the Prosecutor General's
Office had told the newspaper that the Prosecutor General's Office
had received systematic indications from Mr Mişin and the
advisers to the President concerning who should be employed or
dismissed. In the previous year alone, thirty experienced prosecutors
had been dismissed from the Chişinău Prosecutor's Office.
The
article also gave an account of the applicant's dismissal as a result
of pressure from Mr Mişin, and stated that sources at the
Prosecutor General's Office had told the newspaper that the Office
had received tens of letters from Mr Mişin and V.S. (another
high-ranking public official) in connection with ongoing criminal
investigations.
According
to the newspaper's sources, two prosecutors had been dismissed at the
insistence of Mr Mişin because they had discovered incriminating
material against him during an investigation into the disappearance
of an important businessman, P.D. After their dismissal that criminal
investigation had been brought to an end.
II. RELEVANT NON-CONVENTION MATERIALS
A. Domestic law and practice
1. The Labour Code
- Article
263/1 of the Labour Code provided at the material time that employees
of the central public authorities could be dismissed for a serious
breach of their professional duties.
2. The Internal Regulations of the Press Department of
the Prosecutor General's Office
- Sections 1.4 and 4.11 of the Internal Regulations of
the Press Department of the Prosecutor General's Office read as
follows:
“1.4 The Press Department shall plan and organise,
in conjunction with the editorial offices of newspapers, magazines,
and radio and television stations and with the heads of other
departments of the Prosecutor General's Office, items for publication
in the mass media concerning the activities of the Prosecutor
General's Office.
...
4.11 [The Head of the Press Department] is responsible
for the quality of the published materials, the veracity of the
information received and supplied and for preserving confidentiality
in accordance with the legislation of the Republic of Moldova”.
- At the material time neither the Internal Regulations
of the Prosecutor's Office nor Moldovan legislation in general
contained any provision concerning the disclosure by employees of
acts of wrongdoing at their place of work.
3. The Criminal Code and the Code of Criminal Procedure
- The Criminal Code at the material time contained in
Article 190/1 a provision prohibiting any interference with a
criminal investigation. It stated:
“Any interference with a criminal investigation,
namely the illegal exercise of influence in any form over the person
carrying out the investigation ... shall be punished with
imprisonment of up to two years or a fine of up to one hundred times
the minimum wage.”
- Article
90 of the Code of Criminal Procedure provided at the material time
that, inter alia, information about offences contained in
newspaper articles or notes or letters published in a newspaper could
constitute a ground for a prosecutor to commence a criminal
investigation.
- Article 122 of the Code of Criminal Procedure provided
that at the investigation stage materials from a criminal file could
not be disclosed except with the authorisation of the person in
charge of the investigation.
4. The organisation of the prosecuting authority in
Moldova
- According to Article 125 of the Constitution,
prosecutors are independent.
- The
relevant parts of the Prosecuting Authorities Act read as follows:
“Section 3. The fundamental principles
governing the activity of the Prosecutor's Office
1. The Prosecutor's Office:
- shall exercise its functions independently of the
public authorities ... in accordance with the law; ...
3. ...Prosecutors and investigators are
precluded from membership of any political party or other
socio-political organisations and shall only be accountable before
the law...”
“Section 13. The Prosecutor General
1. The Prosecutor General shall:
(i) be appointed by Parliament on a proposal
by the Speaker of Parliament for a term of office of 5 years; and
(ii) have a senior deputy and ordinary
deputies, who shall be appointed by Parliament on the basis of his or
her proposals...”
5. The Petitions Act and the Status of Members of
Parliament Act
- The Petitions Act requires civil servants or
government bodies to reply to written requests within thirty days. If
they lack competence, they must forward the request to the competent
body within three days.
- The relevant provisions of the Status of Members of
Parliament Act of 7 April 1994 provide:
Section 22(1)
“Members of Parliament shall have the right to
contact any State body, non-governmental organisation or official
about problems pertaining to the activity of a Member of Parliament
and to participate in their examination.”
Section 23
“(1) Members of Parliament, in their capacity
as representatives of the supreme legislative authority, shall have
the right to demand the immediate cessation of any unlawful conduct.
In case of necessity they may request official bodies or persons to
intervene to cause the unlawful conduct to cease...”
B. Reports concerning the separation of powers and
independence of the judiciary in Moldova
- The relevant sections of the 2004 report of the
International Commission of Jurists (ICJ) on the rule of law in
Moldova stated:
“...The mission to Moldova carried out by the
Centre for the Independence of Judges and Lawyers of the
International Commission of Jurists (ICJ/CIJL) has concluded that,
despite efforts by the post-independence Moldovan Government to
reform its system of justice, the rule of law suffers serious
shortcomings that must be addressed. The ICJ/CIJL found that the
breakdown in the separation of powers has again resulted in a
judiciary that is largely submissive to the dictates of the
Government. The practice of 'telephone justice' has returned. The
executive is able to substantially influence judicial appointments
through the Supreme Council of Magistracy that lacks independence.
Beyond allegations of corruption, the Moldovan judiciary has
substantially regressed in the last three years, resulting in court
decisions that can pervert the course of justice when the interests
of the Government are at stake....”
- The 2003 Freedom House report on Moldova stated, inter
alia, that:
“... In 2002, the principle of the rule of law was
under challenge in Moldova... Also affecting the fragile balance of
power among the legislative, executive, and judicial branches of
government in 2002 were a series of judicial nominations based on
loyalty to the ruling party, the dismissal of the ombudsman, and
attempts to limit the independence of the Constitutional Court... In
April 2002, the Moldovan Association of Judges (MAJ) signalled that
the government had started a process of 'mass cleansing' in the
judicial sector. Seven judges lost their jobs. ... The situation
worsened when President Voronin refused to prolong the mandates of 57
other judges...”
- The 2003 Report by Open Society Justice Initiative
and Freedom House Moldova stated, inter alia, the following:
“... there has been instituted the practice of
'taking under control' certain files, presenting interest to the
Communist leaders or to state authorities. This practice implies the
following: the High Council of the Magistracy (HCM) or the Supreme
Court (both institutions are chaired by the same person) receives
instructions from the President's office, from Government or
Parliament, referring to the concerned case and required solution
(such instructions also exist in oral form). Following these
instructions, the Supreme Court or HCM addresses directly to the
chairman of the court, where the particular case is being considered
with the order to 'take under personal control' the examination of
one or other particular file. The so-called 'taking under control' in
fact represents direct instructions on solutions for specific cases.”
C. Materials from the United Nations
- The
Termination of Employment Convention no. 158 of the International
Labour Organisation, which was ratified by Moldova on 14 February
1997, reads in so far as relevant:
Article 5
“The following, inter alia, shall not
constitute valid reasons for termination:
...
(c) the filing of a complaint or the
participation in proceedings against an employer involving alleged
violation of laws or regulations or recourse to competent
administrative authorities;
...”
- The
United Nations Convention against Corruption, which was adopted by
the General Assembly by resolution no. 58/4 of 31 October 2003 and
has been in force since 14 December 2005, reads in so far as
relevant:
Article 33
“Protection of reporting persons
Each State Party shall consider incorporating into its
domestic legal system appropriate measures to provide protection
against any unjustified treatment for any person who reports in good
faith and on reasonable grounds to the competent authorities any
facts concerning offences established in accordance with this
Convention.”
At
the date on which this judgment was adopted, the Convention had been
signed by 140 countries and ratified or acceded to by 77 countries,
not including the Republic of Moldova.
C. Materials of the Council of Europe
- The
Council of Europe's Criminal Law Convention on Corruption of
27 January 1999 reads in so far as relevant:
“Preamble
The member States of the Council of Europe and the other
States signatory hereto,
...
Emphasising that corruption threatens the rule of law,
democracy and human rights, undermines good governance, fairness and
social justice, distorts competition, hinders economic development
and endangers the stability of democratic institutions and the moral
foundations of society;
...
Have agreed as follows:
...
Article 22 – Protection of collaborators of
justice and witnesses
Each Party shall adopt such measures as may be necessary
to provide effective and appropriate protection for:
a. those who report the criminal offences
established in accordance with Articles 2 to 14 or otherwise
co-operate with the investigating or prosecuting authorities;
b. witnesses who give testimony concerning
these offences.”
The
Explanatory Report to this Convention states as follows with regard
to Article 22:
“111. ... the word 'witnesses' refers
to persons who possess information relevant to criminal proceedings
concerning corruption offences as contained in Articles 2 – 14
of the Convention and includes whistleblowers.”
This
Convention was signed by Moldova on 24 June 1999 and entered into
force in respect of Moldova on 1 May 2004.
- The Council of Europe's Civil Law Convention on
Corruption of 4 November 1999 reads in so far as relevant:
“Preamble
The member States of the Council of Europe, the other
States and the European Community, signatories hereto,
...
Emphasising that corruption represents a major threat to
the rule of law, democracy and human rights, fairness and social
justice, hinders economic development and endangers the proper and
fair functioning of market economies;
Recognising the adverse financial consequences of
corruption to individuals, companies and States, as well as
international institutions;
...
Have agreed as follows:
...
Article 9 – Protection of employees
Each Party shall provide in its internal law for
appropriate protection against any unjustified sanction for employees
who have reasonable grounds to suspect corruption and who report in
good faith their suspicion to responsible persons or authorities.”
The
Explanatory Report to this Convention states with regard to
Article 9:
“66. This Article deals with the need
for each Party to take the necessary measures to protect employees,
who report in good faith and on the basis of reasonable grounds their
suspicions on corrupt practices or behaviours, from being victimised
in any way.
67. As regards the necessary measures to
protect employees provided for by Article 9 of the Convention,
the legislation of Parties could, for instance, provide that
employers be required to pay compensation to employees who are
victims of unjustified sanctions.
68. In practice corruption cases are
difficult to detect and investigate and employees or colleagues
(whether public or private) of the persons involved are often the
first persons who find out or suspect that something is wrong.
69. The 'appropriate protection against any
unjustified sanction' implies that, on the basis of this Convention,
any sanction against employees based on the ground that they had
reported an act of corruption to persons or authorities responsible
for receiving such reports, will not be justified. Reporting should
not be considered as a breach of the duty of confidentiality.
Examples of unjustified sanctions may be a dismissal or demotion of
these persons or otherwise acting in a way which limits progress in
their career.
70. It should be made clear that, although no
one could prevent employers from taking any necessary action against
their employees in accordance with the relevant provisions (e.g. in
the field of labour law) applicable to the circumstances of the case,
employers should not inflict unjustified sanctions against employees
solely on the ground that the latter had reported their suspicion to
the responsible person or authority.
71. Therefore the appropriate protection
which Parties are required to take should encourage employees to
report their suspicions to the responsible person or authority.
Indeed, in many cases, persons who have information of corruption
activities do not report them mainly because of fear of the possible
negative consequences.
72. As far as employees are concerned, this
protection provided covers only the cases where they have reasonable
ground to report their suspicion and report them in good faith. In
other words, it applies only to genuine cases and not to malicious
ones.”
This
Convention was signed by Moldova on 4 November 1999 and entered into
force in respect of Moldova on 1 July 2004.
- The Recommendation on Codes of Conduct for Public
Officials adopted by the Committee of Ministers of the Council of
Europe on 11 May 2000 (Rec(2000)10), in so far as relevant,
reads:
“Article 11
Having due regard for the right of access to official
information, the public official has a duty to treat appropriately,
with all necessary confidentiality, all information and documents
acquired by him or her in the course of, or as a result of, his or
her employment.
Article 12 – Reporting
...
5. The public official should report to the
competent authorities any evidence, allegation or suspicion of
unlawful or criminal activity relating to the public service coming
to his or her knowledge in the course of, or arising from, his or her
employment. The investigation of the reported facts shall be carried
out by the competent authorities.
6. The public administration should ensure
that no prejudice is caused to a public official who reports any of
the above on reasonable grounds and in good faith.”
THE LAW
- The
applicant complained that his dismissal for the
disclosure of the impugned letters to the Jurnal de Chişinău
amounted to a breach of his right to freedom of expression and in
particular of his right to impart information and ideas to third
parties. Article 10 of the Convention reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
I. THE ADMISSIBILITY OF THE CASE
A. The complaint under Article 6 of the Convention
- In
his initial application, the applicant submitted a complaint under
Article 6 of the Convention about the failure of the domestic
courts to consider the arguments he had made in the reinstatement
proceedings. However, in his subsequent submissions, the applicant
asked the Court not to proceed with the examination of that
complaint. Accordingly the Court will not examine it.
B. The complaint under Article 10 of the Convention
- The
Government did not contest the authenticity of the letter that had
been sent by Mr Mişin to the Prosecutor General. However, they
argued that there had been no interference with the applicant's right
to freedom of expression because he was not the author of the
articles that had been published in the Jurnal de Chişinău
and had not been dismissed for exercising his freedom of expression
but simply for breaching the internal regulations of the Prosecutor
General's Office. In their view, since the applicant's complaints
were in essence related to his labour rights, Article 10 was
inapplicable.
- The
applicant argued that Article 10 was applicable in the present case,
irrespective of the fact that he was not the author of the letters
that had been sent to the newspaper. Relying on the cases of Thoma
v. Luxembourg (no. 38432/97, ECHR 2001 III) and
Jersild v. Denmark (judgment of 23 September 1994, Series
A no. 298) he submitted that the Court had already found that freedom
of expression also covered the right to disseminate information
received from third parties.
- The Court reiterates that the protection of Article 10
extends to the workplace in general and to public servants in
particular (see Vogt v. Germany, judgment of 26 September
1995, Series A no. 323, § 53; Wille v. Liechtenstein
[GC], no. 28396/95, § 41, ECHR 1999 VII; Ahmed and
Others v. the United Kingdom, judgment of 2 September 1998,
Reports of Judgments and Decisions 1998 VI, §
56; and Fuentes Bobo v. Spain, no. 39293/98, § 38,
29 February 2000).
- The applicant sent the letters to the newspaper, which
subsequently published them. Since Article 10 includes the freedom to
impart information and since the applicant was dismissed for his
participation in the publication of the letters, the Court dismisses
the Government's preliminary objection.
- The
Court considers that the applicant's complaint under Article 10
of the Convention raises questions of fact and law which are
sufficiently serious for their determination to depend on an
examination of the merits, and no grounds for declaring it
inadmissible have been established. The Court therefore declares the
application admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4 above), the
Court will immediately consider the merits of these complaints.
II. THE MERITS OF THE CASE
A. Existence of an interference
- The
Court found in paragraph 53 above that Article 10 was applicable to
the present case. It further holds that the applicant's dismissal for
making the letters public amounted to an “interference by a
public authority” with his right to freedom of expression under
the first paragraph of that Article.
- Such
interference will constitute a breach of Article 10 unless it was
“prescribed by law”, pursued one or more legitimate aims
under paragraph 2 and was “necessary in a democratic
society” for the achievement of those aims.
B. Whether the interference was “prescribed by
law”
- In
his initial submissions, the applicant argued that the interference
had not been prescribed by law since the law relied upon by the
domestic authorities was not sufficiently foreseeable. However, in
his subsequent oral pleadings he did not pursue this point.
- The
Court notes that the applicant was dismissed on the basis of Article
263/1 of the Labour Code for having violated paragraphs 1.4 and 4.11
of the Internal Regulations of the Press Department of the Prosecutor
General's Office (see paragraph 31 above). However, since the parties
did not argue this point further before the Court, it will continue
its examination on the assumption that the provisions contained in
paragraphs 1.4 and 4.11 of the Internal Regulations satisfied the
requirement for the interference to be “prescribed by law”.
C. Whether the interference pursued a legitimate aim
- The
applicant argued that the interference did not pursue any legitimate
aim. The Government submitted that the legitimate aims pursued in
this case were to maintain the authority of the judiciary, to prevent
crime and to protect the reputation of others. The Court, for its
part, is ready to accept that the legitimate aim pursued was the
prevention of the disclosure of information received in confidence.
In so deciding, the Court finds it significant that at the time of
his dismissal the applicant refused to disclose the source of the
information, which suggests that it was not easily or publicly
available (see Haseldine v. the United Kingdom, no. 18957/91,
Commission decision of 13 May 1992, Decisions and Reports (DR) 73).
The Court must therefore examine whether the interference was
necessary in a democratic society, in particular whether there was a
proportionate relationship between the interference and the aim
thereby pursued.
D. Whether the interference was necessary in a
democratic society
1. The parties' submissions
(a) The applicant
- According to the applicant, the disclosure of the
letters had to be regarded as whistle-blowing on illegal conduct.
- He
pointed first to the fact that he had acted in good faith and that,
when he disclosed the letters to the newspaper, he was convinced that
they contained information concerning the commission of a serious
offence by the Deputy Speaker of Parliament. The only reason for his
disclosing it was to help fight corruption and trading in influence.
He disagreed that the purpose of Mr Mişin's note had simply been
to pass the police officers' letter to the Prosecutor General in
accordance with the Petitions Act (see paragraph 38 above) and with
the contention that Mr Mişin's actions had been in accordance
with sections 22 and 23 of the Status of Members of Parliament Act
(see paragraph 39 above). He further argued that the letters were not
part of a criminal case-file.
The
applicant contended that in the light of the manner in which the
Prosecutor General and his deputies were appointed and in view of the
predominant position of the Communist party in Parliament, the
Prosecutor General's Office was perceived by the public as being
strongly influenced by Parliament. The independence of the Prosecutor
General's Office was guaranteed in theory but not in practice. In the
applicant's submission, the Prosecutor General could be dismissed at
will by Parliament without any reasons being given. In the years
2002-2003 more than thirty prosecutors who were not considered loyal
to the Communist Party had been dismissed. Moreover, Mr Mişin,
who was one of the leaders of the ruling party and a deputy speaker
of Parliament, was also perceived as systematically using his
position to influence the outcome of judicial proceedings.
The
applicant added that the language of the letter written by Mr Mişin
unequivocally suggested that its author intended to influence the
outcome of the criminal proceedings against the four police officers.
Such conduct constituted an offence under Article 190/1 of the
Criminal Code (see paragraph 33 above). The applicant also pointed to
the fact that after receiving the letter in question, the Prosecutor
General had ordered the re-opening of the criminal investigation and
shortly thereafter the criminal proceedings had been discontinued.
According to the applicant, the fact that the four police officers
decided to ask State representatives at the highest level to
investigate the legality of the criminal charges against them
indicated the existence of a practice in the Republic of Moldova that
was contrary to the principle of the separation of powers. It was
highly unlikely that police officers dealing with the investigation
of crime would be unaware that the authorities to whom they had
addressed their letters had no judicial functions.
According
to the applicant, the information disclosed by him was thus of major
public interest.
- In
order to disclose the information, he had had no alternative but to
go to a newspaper. As there was no whistle-blowing legislation in
Moldova, employees had no procedure for disclosing wrongdoing at
their place of work. It would have been pointless to bring the
problem to the attention of the Prosecutor General, as he lacked
independence. Even though he had been aware of Mr Mişin's letter
for about six months, it would appear that he had simply concealed
its existence while at the same time complying with its terms. The
refusal of the Prosecutor's Office to initiate criminal proceedings
against Mr Mişin after the publication of the newspaper articles
(see paragraphs 15 and 29 above) supported the view that any
disclosure to the Prosecutor's Office would have been in vain.
Furthermore, the applicant had had reasonable grounds for fearing
that the evidence would be concealed or destroyed if he disclosed it
to his superiors.
The
applicant also submitted that it would have been unreasonable to
expect him to complain to Parliament because 71 of its 101 members
were from the ruling Communist Party and there was no precedent of an
MP from that party being prosecuted for a criminal offence. Moreover,
between 2001 and 2004 no initiative by the opposition that was
contrary to the interests of the ruling party had ever been
successful in Parliament.
- The
applicant also complained about the severity of the sanction that had
been imposed on him and pointed out that it was at the highest end of
the range of possible penalties.
(b) The Government
- In
the Government's view, the disclosure in question did not amount to
whistle-blowing.
- They considered that the letters were internal
documents to which the applicant would not normally have had access
by virtue of his functions. He had thus effectively “stolen”
them. Moreover, the letters disclosed by the applicant were
confidential and part of a criminal file. Under the Code of Criminal
Procedure, materials in a criminal case file could not be made public
without the authorisation of the person conducting the investigation
(see paragraph 35 above).
The
applicant's good faith was questionable also because the letter
written by Mr Mişin could not reasonably be considered to have
put undue pressure on the Prosecutor General. The expression “I
ask you to get personally involved in this case and solve it in
strict compliance with the law” was a normal form of
communication between different State bodies in accordance with the
law. Mr Mişin had simply passed the letter received from the
four police officers to the competent body – the Prosecutor
General's Office – in accordance with the Petitions Act (see
paragraph 38 above) and the Status of Members of Parliament Act
(see paragraph 39 above). Under the latter Act, an MP had the
right, inter alia, to examine petitions from citizens, to pass
them to competent authorities, to participate in their examination
and to monitor compliance with the law.
There
was no causal link between Mr Mişin's letter and the subsequent
decision to discontinue the criminal proceedings against the four
police officers. In the Government's submission, the Prosecutor
General's Office was a truly independent body whose independence was
guaranteed by the Constitution and law of Moldova (see paragraphs 36
and 40 above).
Moreover,
the applicant had not given the domestic courts the same reason for
his actions as he had given his employer (see paragraphs 18 and 20
above). In the Government's view, this also indicated a lack of good
faith on his part and showed that the real motive behind the
disclosure was not the fight against corruption but an attempt to
embarrass those concerned.
- Since, as outlined above, Mr Mişin was not
attempting to put pressure on the Prosecutor General, the information
contained in his letter was not of public interest.
- Moreover, the applicant had not disclosed the
information to a competent authority and had acted hastily. There had
been no information of an urgent or irreversible nature concerning
life, health or the environment. The applicant was entitled to make a
disclosure externally only if it was not possible to do so
internally. Any such disclosure should in the first instance have
been to the top echelons of the Prosecutor General's Office and
thereafter to the Parliament (including the Parliamentary
Commissions, factions and opposition), rather than going directly to
the press.
In
support of their submission, the Government sent the Court copies of
several complaints that had been lodged by citizens with the
Parliament concerning alleged illegalities in employment and other
matters. All the complaints appeared to have been forwarded by the
Parliament to the competent organs, such as the Prosecutor General's
Office and the Superior Council of Magistrates, without any other
parliamentary involvement.
The
Government argued that twenty-one states in the United States of
America did not afford protection to disclosures made to the media,
while in the United Kingdom protection for external whistle-blowing
was possible only in extremely rare and strictly defined
circumstances.
- In
view of the nature of the duties and responsibilities of civil
servants, the margin of appreciation enjoyed by the States in
interfering with their right to freedom of expression was very large.
The Government submitted, lastly, that the severity of the penalty
was proportionate to the gravity of the applicant's acts.
2. The Court's assessment
(a) The general principles applicable in
this case
- The
central issue which falls to be determined is whether the
interference was “necessary in a democratic society”. The
fundamental principles in that regard are well established in the
Court's case-law and have been summed up as follows (see, among other
authorities, Jersild v. Denmark, cited above, p. 23, §
31; Hertel v. Switzerland, judgment of 25 August 1998,
Reports 1998 VI, pp. 2329-30, § 46; and Steel and
Morris v. the United Kingdom, no. 68416/01, § 87, ECHR
2005 II):
“(i) Freedom of expression constitutes
one of the essential foundations of a democratic society and one of
the basic conditions for its progress and for each individual's
self-fulfilment. Subject to paragraph 2 of Article 10, it is
applicable not only to 'information' or 'ideas' that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb. Such are the demands
of pluralism, tolerance and broadmindedness without which there is no
'democratic society'. As set forth in Article 10, this freedom is
subject to exceptions, which ... must, however, be construed
strictly, and the need for any restrictions must be established
convincingly...
(ii) The adjective 'necessary', within the
meaning of Article 10 § 2, implies the existence of a 'pressing
social need'. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes
hand in hand with European supervision, embracing both the
legislation and the decisions applying it, even those given by an
independent court. The Court is therefore empowered to give the final
ruling on whether a 'restriction' is reconcilable with freedom of
expression as protected by Article 10.
(iii) The Court's task, in exercising its
supervisory jurisdiction, is not to take the place of the competent
national authorities but rather to review under Article 10 the
decisions they delivered pursuant to their power of appreciation.
This does not mean that the supervision is limited to ascertaining
whether the respondent State exercised its discretion reasonably,
carefully and in good faith; what the Court has to do is to look at
the interference complained of in the light of the case as a whole
and determine whether it was 'proportionate to the legitimate aim
pursued' and whether the reasons adduced by the national authorities
to justify it are 'relevant and sufficient'... In doing so, the Court
has to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10
and, moreover, that they relied on an acceptable assessment of the
relevant facts...”
- The
Court further reiterates that Article 10 applies also to the
workplace, and that civil servants, such as the applicant, enjoy the
right to freedom of expression (see paragraph 52 above). At the same
time, the Court is mindful that employees owe to their employer a
duty of loyalty, reserve and discretion. This is particularly so in
the case of civil servants since the very nature of civil service
requires that a civil servant is bound by a duty of loyalty and
discretion (see Vogt v. Germany, cited above, § 53; Ahmed
and Others v. the United Kingdom, cited above, § 55; and De
Diego Nafría v. Spain, no. 46833/99, §
37, 14 March 2002).
- Since
the mission of civil servants in a democratic society is to assist
the government in discharging its functions and since the public has
a right to expect that they will help and not hinder the
democratically elected government, the duty of loyalty and reserve
assumes special significance for them (see, mutatis mutandis,
Ahmed and Others v. the United Kingdom, cited above, §
53.) In addition, in view of the very nature of their position, civil
servants often have access to information which the government, for
various legitimate reasons, may have an interest in keeping
confidential or secret. Therefore, the duty of discretion owed by
civil servants will also generally be a strong one.
- To
date, however, the Court has not had to deal with cases where a civil
servant publicly disclosed internal information. To that extent the
present case raises a new issue which can be distinguished from that
raised in Stoll v. Switzerland ([GC], no. 69698/01, 10
December 2007) where the disclosure took place without the
intervention of a civil servant. In this respect the Court notes that
a civil servant, in the course of his work, may become aware of
in-house information, including secret information, whose divulgation
or publication corresponds to a strong public interest. The Court
thus considers that the signalling by a civil servant or an employee
in the public sector of illegal conduct or wrongdoing in the
workplace should, in certain circumstances, enjoy protection. This
may be called for where the employee or civil servant concerned is
the only person, or part of a small category of persons, aware of
what is happening at work and is thus best placed to act in the
public interest by alerting the employer or the public at large. In
this context, the Court has had regard to the following statement
from the Explanatory Report to the Council of Europe's Civil Law
Convention on Corruption (see paragraph 46 above):
“In practice corruption cases are difficult to
detect and investigate and employees or colleagues (whether public or
private) of the persons involved are often the first persons who find
out or suspect that something is wrong”.
- In
the light of the duty of discretion referred to above, disclosure
should be made in the first place to the person's superior or other
competent authority or body. It is only where this is clearly
impracticable that the information could, as a last resort, be
disclosed to the public (see, mutatis mutandis, Haseldine,
cited above). In assessing whether the restriction on freedom of
expression was proportionate, therefore, the Court must take into
account whether there was available to the applicant any other
effective means of remedying the wrongdoing which he intended to
uncover.
- In
determining the proportionality of an interference with a civil
servant's freedom of expression in such a case the Court must also
have regard to a number of other factors. In the first place,
particular attention shall be paid to the public interest involved in
the disclosed information. The Court reiterates that there is little
scope under Article 10 § 2 of the Convention for restrictions on
debate on questions of public interest (see, among other authorities,
Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61,
ECHR 1999-IV). In a democratic system the acts or omissions of
government must be subject to the close scrutiny not only of the
legislative and judicial authorities but also of the media and public
opinion. The interest which the public may have in particular
information can sometimes be so strong as to override even a legally
imposed duty of confidence (see Fressoz and Roire v. France
[GC], no. 29183/95, ECHR 1999 I; and Radio Twist, A.S. v.
Slovakia, no. 62202/00, ECHR 2006 ...).
- The
second factor relevant to this balancing exercise is the authenticity
of the information disclosed. It is open to the competent State
authorities to adopt measures intended to react appropriately and
without excess to defamatory accusations devoid of foundation or
formulated in bad faith (see Castells v. Spain, judgment of 23
April 1992, Series A no. 236, § 46). Moreover, freedom of
expression carries with it duties and responsibilities and any person
who chooses to disclose information must carefully verify, to the
extent permitted by the circumstances, that it is accurate and
reliable (see, mutatis mutandis, Morissens v. Belgium,
no. 11389/85, Commission decision of 3 May 1988, DR 56, p. 127;
and Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, § 65, ECHR 1999 III).
- On
the other side of the scales, the Court must weigh the damage, if
any, suffered by the public authority as a result of the disclosure
in question and assess whether such damage outweighed the interest of
the public in having the information revealed (see, mutatis
mutandis, Hadjianastassiou v. Greece, judgment of 16
December 1992, Series A no. 252, § 45; and Stoll
v. Switzerland, cited above, § 130). In this
connection, the subject-matter of the disclosure and the nature of
the administrative authority concerned may be relevant (see
Haseldine, cited above).
- The
motive behind the actions of the reporting employee is another
determinant factor in deciding whether a particular disclosure should
be protected or not. For instance an act motivated by a personal
grievance or a personal antagonism or the expectation of personal
advantage, including pecuniary gain, would not justify a particularly
strong level of protection (see Haseldine, cited
above). It is important to establish that, in making the disclosure,
the individual acted in good faith and in the belief that the
information was true, that it was in the public interest to disclose
it and that no other, more discreet means of remedying the wrongdoing
was available to him or her.
- Lastly,
in connection with the review of the proportionality of the
interference in relation to the legitimate aim pursued, attentive
analysis of the penalty imposed on the applicant and its consequences
is required (see Fuentes Bobo, cited above, § 49).
- The
Court will now assess the facts of the present case in the light of
the above principles.
(b) Application of the above principles in
the present case
(i) Whether the applicant had alternative
channels for making the disclosure
- The
applicant argued that he did not have at his disposal any effective
alternative channel to make the disclosure, while the Government
argued that, on the contrary, the applicant could have raised the
issue with his superiors in the first instance and later with the
Parliament or the Ombudsman if necessary.
- The
Court notes that neither the Moldovan legislation nor the internal
regulations of the Prosecutor General's Office contained any
provision concerning the reporting of irregularities by employees
(see paragraph 32 above). It appears, therefore, that there was no
authority other than the applicant's superiors to which he could have
reported his concerns and no prescribed procedure for reporting such
matters.
- It
also appears that the disclosure concerned the conduct of a Deputy
Speaker of Parliament, who was a high-ranking official, and that
despite having been aware of the situation for some six months the
Prosecutor General had shown no sign of having any intention to
respond but instead gave the impression that he had succumbed to the
pressure that had been imposed on his office.
- As
to the alternative means of disclosure suggested by the Government
(see paragraph 67 above), the Court finds that it has not been
presented with any satisfactory evidence to counter the applicant's
submission that none of the proposed alternatives would have been
effective in the special circumstances of the present case.
- In
the light of the foregoing, the Court considers that in the
circumstances of the present case external reporting, even to a
newspaper, could be justified.
(ii) The public interest in the disclosed
information
- The applicant submitted that Mr Mişin's note
constituted evidence of political interference in the administration
of justice. The Government disagreed.
- The
Court notes that the police officers' letter requested Mr Mişin
to verify the legality of the criminal charges brought against them
by the Prosecutor's Office (see paragraph 10 above). Mr Mişin
reacted by sending an official letter to the Prosecutor General. The
Government submitted that Mr Mişin's actions were in compliance,
inter alia, with the Status of Members of Parliament Act. In
this context the Court considers it necessary to reiterate that in a
democratic society both the courts and the investigation authorities
must remain free from political pressure. Any interpretation of any
legislation establishing the rights of Members of Parliament must
abide by that principle.
Having
examined the note which Mr Mişin wrote to the Prosecutor
General, the Court cannot accept that it was intended to do no more
than to transmit the police officers' letter to a competent body as
suggested by the Government (see paragraph 65 above). Moreover, in
view of the context and of the language employed by Mr Mişin, it
cannot be excluded that the effect of the note was to put pressure on
the Prosecutor General's Office, irrespective of the inclusion of the
statement that the case was to be “examined in strict
compliance with the law” (see paragraph 10 above).
- Against
this background, the Court notes that the President of Moldova has
campaigned against the practice of interference by politicians with
the criminal-justice system and that the Moldovan media has widely
covered the subject (see paragraph 11 above). It also notes the
reports of the international non-governmental organisations (see
paragraphs 40-42 above) which express concern about the breakdown of
separation of powers and the lack of judicial independence in
Moldova.
- In
the light of the above, the Court considers that the letters
disclosed by the applicant had a bearing on issues such as the
separation of powers, improper conduct by a high-ranking politician
and the Government's attitude towards police brutality (see
paragraphs 10 and 14 above). There is no doubt that these are very
important matters in a democratic society which the public has a
legitimate interest in being informed about and which fall within the
scope of political debate.
(iii) The authenticity of the disclosed
information
- It
is common ground that the letters disclosed by the applicant to the
Jurnal de Chişinău were genuine (see paragraph 26
above).
(iv) The detriment to the Prosecutor
General's Office
- The
Court observes that it is in the public interest to maintain
confidence in the independence and political neutrality of the
prosecuting authorities of a State (see, mutatis mutandis,
Prager and Oberschlick v. Austria, judgment of 26 April
1995, Series A no. 313, § 34). The letters sent by the applicant
to the newspaper were not written by officials of the Prosecutor
General's Office and, according to the Government, the letter from Mr
Mişin was a normal communication
between State bodies which had not affected the decision of the
Prosecutor General's Office to discontinue the proceedings against
the police officers. Nevertheless, the conclusion drawn by the
newspaper in its articles that the Prosecutor General's Office was
subject to undue influence may have had strong negative effects on
public confidence in the independence of that institution.
- However,
the Court considers that the public interest in having information
about undue pressure and wrongdoing within the Prosecutor's Office
revealed is so important in a democratic society that it outweighed
the interest in maintaining public confidence in the Prosecutor
General's Office. It reiterates in this context that open discussion
of topics of public concern is essential to democracy and regard must
be had to the great importance of not discouraging members of the
public from voicing their opinions on such matters (see, Barfod v.
Denmark, judgment of 22 February 1989, Series A no. 149, §
29).
(v) Whether the applicant acted in good
faith
- The
applicant argued that his sole motive for disclosing the letters was
to help fight corruption and trading in influence. This statement was
not disputed by his employer. The Government, on the other hand,
expressed doubt about the applicant's good faith, arguing, inter
alia, that he had not given this explanation before the domestic
courts.
- On
the basis of the materials before it, the Court does not find any
reason to believe that the applicant was motivated by a desire for
personal advantage, held any personal grievance against his employer
or Mr Mişin, or that there was any other ulterior motive for his
actions. The fact that he did not make before the domestic courts his
submissions about the fight against corruption and trading in
influence is, in the Court's opinion, inconclusive since he may have
been focused on challenging the reasons advanced by his employer for
dismissing him and might well have considered it unnecessary to refer
to matters that his employer did not dispute.
- Accordingly,
the Court comes to the conclusion that the applicant's motives were
as stated by him and that he acted in good faith.
(vi) The severity of the sanction
- Finally,
the Court notes that the heaviest sanction possible was imposed on
the applicant. While it had been open to the authorities to apply a
less severe penalty, they chose to dismiss the applicant, which
undoubtedly is a very harsh measure (see Vogt, cited above, §
60). This sanction not only had negative repercussions on the
applicant's career but it could also have a serious chilling effect
on other employees from the Prosecutor's Office and discourage them
from reporting any misconduct. Moreover, in view of the media
coverage of the applicant's case, the sanction could have a chilling
effect not only on employees of the Prosecutor's Office but also on
many other civil servants and employees.
- The
Court observes that the Government have argued that the applicant had
in fact “stolen” the letter, which in their view was
secret and part of a criminal file. The Government also stated that
Mr Mişin's letter had not placed any undue pressure on the
Public Prosecutor. It was a normal communication between State bodies
and was unconnected with the decision to discontinue the proceedings
against the police officers. In these circumstances, the Court finds
that it is difficult to justify such a severe sanction being applied.
(c) Conclusion
- Being
mindful of the importance of the right to freedom of expression on
matters of general interest, of the right of civil servants and other
employees to report illegal conduct and wrongdoing at their place of
work, the duties and responsibilities of employees towards their
employers and the right of employers to manage their staff, and
having weighed up the other different interests involved in the
present case, the Court comes to the conclusion that the interference
with the applicant's right to freedom of expression, in particular
his right to impart information, was not “necessary in a
democratic society”.
Accordingly,
there has been a violation of Article 10 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 15,000 in respect of pecuniary and
non-pecuniary damage made up as follows: EUR 6,000 for loss of
earnings for the period of unemployment after his dismissal, EUR
6,000 for lost career prospects and EUR 3,000 for non-pecuniary
damage.
- The
Government contested the claim and argued that the applicant's claims
were ill-founded and excessive.
- The
Court considers that the applicant must have suffered pecuniary and
non-pecuniary damage as a result of his dismissal. Making its
assessment on an equitable basis, it awards him EUR 10,000.
B. Costs and expenses
- The
applicant's representatives claimed EUR 6,843 for legal fees, of
which EUR 4,400 was claimed in respect of Mr Gribincea and EUR 2,443
in respect of Mr Zamă. They submitted a detailed time-sheet and
a contract indicating that the lawyers' hourly rates were EUR 80 and
EUR 70 respectively. The calculation in the time-sheet did not
include time spent on the complaint under Article 6, which was
subsequently withdrawn by the applicant.
- They
argued that the number of hours they had spent on the case was not
excessive and was justified by its complexity and the fact that the
observations had to be written in English.
- As
to the hourly rate, the applicant's lawyers argued that it was within
the limits recommended by the Moldovan Bar Association, which were
between EUR 40 and 150.
- The
applicant's representatives also claimed EUR 2,413 for expenses
linked to the hearing of 6 June 2007, which sum included travel
expenses, visa costs, insurance costs and a subsistence allowance.
- The
Government contested the amount claimed for the applicant's
representation. They said that it was excessive and disputed the
number of hours that had been spent by the applicant's lawyers and
the hourly rates, notably that charged by Mr Zamă, who, in their
opinion, lacked the necessary experience to command such high fees.
- As
to the other expenses claimed by the applicant, the Government argued
that they should have been claimed from the Court.
- The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41 of the Convention, it must be
established that they were actually and necessarily incurred and were
reasonable as to quantum (see, for example, Amihalachioaie v.
Moldova, no. 60115/00, § 47, ECHR 2004 III). In
the present case, regard being had to the itemised list that has been
submitted and the complexity of the case, the Court awards the entire
amount claimed by Mr Gribincea, EUR 1,600 for Mr Zama's fee and the
entire amount claimed by the applicant's representatives for the
expenses incurred in connection with the hearing of 6 June 2007.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 10,000 (ten thousand euros) in respect of pecuniary damage and
non-pecuniary damage and EUR 8,413 (eight thousand four hundred and
thirteen euros) in respect of costs and expenses, plus any tax that
may be chargeable, which sums are to be converted into the currency
of the respondent State at the rate applicable at the date of
payment;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 12 February 2008.
Erik Fribergh Jean-Paul
Costa
Registrar President
