Information Note on the Court’s case-law No. 105
February 2008
Guja v. Moldova [GC] - 14277/04
Judgment 12.2.2008 [GC]
Article 10
Article 10-1
Freedom to impart information
Dismissal of a member of the Prosecutor General’s Office for leaking evidence of apparent governmental interference in the administration of criminal justice to the press: violation
Facts: In January 2003 the President of Moldova made a speech in which he stressed the need to fight corruption and called on law-enforcement officers to disregard undue pressure from public officials. The speech was reported in the media. A few days later the applicant, who was the Head of the Press Department at the Prosecutor General’s Office, passed two letters received by that office to a national newspaper. Neither letter was marked confidential. The first was a note from the Deputy Speaker of Parliament to the Prosecutor General enclosing a letter from four police officers who wished to apply for protection from prosecution after being charged with the illegal detention and ill-treatment of detainees. The note was critical of the Prosecutor General’s Office and commended the police officers, saying that they were “from one of the best teams” at the ministry. It ended with a request by the Deputy Speaker for the Prosecutor General to “get personally involved in th[e] case and to solve it in strict compliance with the law”. The second letter was from a deputy minister to a deputy prosecutor general and indicated that one of the police officers had a previous conviction for assaulting prisoners but had later been amnestied.
After receiving the letters, the newspaper published an article describing the President’s anti-corruption drive and noting that abuse of power was widespread in Moldova. It cited the Deputy Speaker’s apparent attempts to protect the four police officers as an example and printed copies of the two letters. The applicant subsequently admitted that it was he who had passed the letters to the newspaper, but said that he had done so in line with the President’s anti-corruption drive, in order to create a positive image of the Prosecutor’s Office, and that the letters were not confidential. However, he was dismissed for failing to consult his colleagues and for disclosing what it was alleged were secret documents. He made an unsuccessful application to the civil courts for reinstatement.
Law: The Court had not previously had to consider a case in which a civil servant had publicly disclosed internal information. It noted that civil servants might, in the course of their work, become aware of in-house information, including secret information, whose divulgation or publication corresponded to a strong public interest. The signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace ought thus, in certain circumstances, to enjoy protection, for example where the civil servant or employee was the only person, or part of a small category of persons, aware of what was happening and so best placed to act. Disclosure in such cases was to be made in the first place to a superior or other competent authority or body. Only where that was clearly impracticable could the information, as a last resort, be disclosed to the public.
Various factors had to be considered in determining the proportionality of an interference with a civil servant’s freedom of expression in such cases. The first was whether other effective means of remedying the wrongdoing were available. The Court noted that in view of the lack of any laws or internal regulations governing the reporting of irregularities, the applicant had had no authority apart from his superiors to turn to and no prescribed procedure for reporting such matters. The Prosecutor General had shown no sign of having any intention to respond to the Deputy Speaker’s letter and had instead given the impression that he had succumbed to political pressure. In such circumstances, external reporting, even to a newspaper, could be justified. The second issue was whether there was a public interest in disclosure. On this point, the Court could not accept that the note from the Deputy Speaker to the Prosecutor General was intended solely to transmit the police officers’ letter to a competent body and – despite the instruction to examine the case “in strict compliance with the law” – could not exclude the possibility that pressure was being put on the Prosecutor General’s Office. It noted too that the President of Moldova had actively campaigned against interference by politicians with the criminal-justice system and that the Moldovan media had widely covered the subject. The letters disclosed by the applicant had a bearing on issues of high importance in a democracy – such as the separation of powers, improper conduct by a high-ranking politician and the Government’s attitude towards police brutality – which the public had a legitimate interest in being informed about. There was therefore a public interest in disclosure. The third consideration, whether the information disclosed was authentic, was not in dispute. As to the question of what damage would be suffered by the public authority concerned, the Court found that despite the negative effects the disclosure had undoubtedly had on the Prosecutor’s Office, the public interest in the provision of information about undue pressure and wrongdoing within that institution was so important as to outweigh the interest in maintaining public confidence in its independence. As to whether the disclosure was made in good faith, there was no reason to believe that the applicant had been motivated by a desire for personal advantage, held any personal grievance or had had any other ulterior motive. The last factor to be considered on the question of proportionality was the penalty inflicted on the applicant. Here it was noted that the heaviest possible sanction (dismissal) had been imposed. In addition to the negative repercussions that had had on the applicant’s career, it was liable to have a serious chilling effect on civil servants and employees generally, as the applicant’s case had attracted wide media coverage. Such a severe sanction could only discourage the reporting of misconduct and was difficult to justify.
After weighing up all the interests involved, the Court concluded that the interference with the applicant’s right to freedom of expression, in particular his freedom to impart information, had not been “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 41 – EUR 10,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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