Legal summary
August 2024
Hrachya Harutyunyan v. Armenia - 15028/16
Judgment 27.8.2024 [Section IV]
Article 10
Article 10-1
Freedom of expression
Applicant ordered to pay damages in civil proceedings brought against him after he had reported alleged corrupt activities by his former colleague in private correspondence with the latter’s hierarchy: violation
Facts – The applicant worked for the Electric Networks of Armenia Closed Joint-Stock Company (“the ENA”), holding the position of Head of the Security and Administration Department from 2008 until his departure in 2011. The company published an announcement on its website calling on anyone with information about corrupt practices at the company to report such information using a dedicated email address. The company promised to carry out an independent investigation and guaranteed that all reports submitted would remain anonymous and confidential.
In March 2012 the applicant sent a report to the dedicated email address which contained accusations of abuse of office, improper conduct and corruption against V.B., an employee in the ENA’s Security Directorate. The report was forwarded to the Head of that Directorate, who was asked to verify the information and presented the report to V.B. As a result, V.B brought civil proceedings against the applicant for insult and defamation.
The first-instance court found that statements made within the report had been defamatory and insulting and ordered the applicant to make a public apology and pay compensation in an amount corresponding to approximately EUR 3,500. All his appeals were unsuccessful and his flat and car were subsequently seized in order to recover the amount of damages imposed by the domestic court.
Law – Article 10:
The civil courts’ judgments against the applicant had amounted to an “interference by public authority” with his right to freedom of expression, had had a legal basis and could be regarded as pursuing the legitimate aim of protecting the “reputation or rights of others”, namely that of V.B.
(a) Whether interference was “necessary in a democratic society” –
(i) Relevance of the Court’s case-law concerning the protection afforded to whistle-blowers – The current European approach was that the end of employment was not a bar to whistle-blower protection. Indeed, both the Committee of Ministers’ Recommendation CM/Rec (2014)7 and Directive 2019/1937/EU extend the protection of freedom of expression of whistle‑blowers to former employees. A similar approach had been taken in the Armenian Whistle-blowing Act introduced after the events in the present case. The Court considered that where the reporting of alleged professional misconduct had taken place after the end of employment, the protection regime for the freedom of expression of whistle‑blowers should not automatically cease to apply simply because the work‑based relationship had ended. Rather, such protection could, in principle, apply provided that public-interest information had been obtained while the “whistle-blower” had had privileged access to it by virtue of his or her work-based relationship. Where the work-based relationship had ended, there could be no question of repercussions at work, but retaliation measures against the former employee could take other forms. What was of importance was whether the detriment suffered by the former employee had been the direct consequence of the protected disclosure.
The applicant’s report had been mainly based on information that he had acquired through privileged access during his employment at ENA. Accordingly, he could be considered as the only person, or part of a small category of persons best placed to act in the public interest. Moreover, he had been subject to civil liability as a direct consequence of his reporting. Therefore, the Court applied, in so far as appropriate, the general criteria and principles as established in Guja v. Moldova [GC] and reaffirmed in Halet v. Luxembourg [GC].
(ii) Application of the above principles to the present case – The domestic courts had treated the present case as an ordinary defamation dispute. Although the applicant had not specifically relied on the protection of freedom of expression afforded to whistle-blowers, he had raised a number of arguments pertaining to the criteria applicable in whistle‑blower cases and thus had given the national courts an opportunity to rule on his case from that perspective.
(α) Internal channels for the reporting – The applicant had not reported the alleged acts of misconduct to competent State authorities or the press. He had opted for the internal channels of reporting and had submitted his report to the hierarchy of his former employer following the latter’s call for people to come forward with such information on the promise that all reports would remain anonymous and confidential. The domestic courts had dismissed the applicant’s arguments in that regard, taking no heed of the overall context of the case. The Court emphasised the leading role that whistle-blowers were liable to play by bringing to light information that was in the public interest, thereby ensuring accountability for the alleged misconduct and identification of those who might be liable for any damage caused. Furthermore, it was difficult to see how the domestic courts had found that the applicant’s reporting could be considered to have been made “in public”. Moreover, the courts had not identified what further measures he had been supposed to take to ensure confidentiality, knowing that this had been promised by the company. Such a formalistic approach had not only compromised his defence rights but could also have had a chilling effect on any former or current employee who had decided to report to an employer professional misconduct by one of its actual employees.
(β) Public interest in the information reported – The content of the applicant’s report had mainly concerned instances of abuse of office, improper conduct and corruption by V.B. The Court had previously found that information concerning unlawful acts or practices had been undeniably of particularly strong public interest. It was noteworthy that the ENA had not been an ordinary private company but the main electricity supplier in Armenia and it appeared that some of its decisions had been subject to prior governmental approval. As such, the ENA and its employees had been subject to a wider level of public scrutiny and the investigation of any allegations of abuse of office and acts of corruption by its officials had been undoubtedly in the public interest. The domestic courts, however, had failed to address in any meaningful manner the applicant’s arguments that his reporting had been made in the public interest. Moreover, the domestic courts had essentially limited the scope of protection of the right to freedom of expression on matters of public interest to media representatives, whereas, according to the Court’s well-settled case‑law, such protection was enjoyed by the public at large.
(γ) Detrimental effects of the reporting – The applicant had filed his report using an internal reporting procedure and any impact on V.B.’s reputation had thus been limited in scope. There was nothing to suggest that the internal investigation triggered by the applicant’s report had caused excessive prejudice to V.B.’s reputation. The domestic courts had not explained why such damage, the nature and scope of which, moreover, had not been determined, had outweighed the general interest in the internal reporting of alleged acts of professional misconduct, the purpose of which had been to ensure accountability at the ENA.
(δ) Authenticity of the disclosed information and good faith – The domestic courts had found that the applicant had failed to prove the veracity of his report. Although the Court had not been provided with the results of the company’s internal investigation, in so far as it had been summarised in the domestic judgments, some of the applicant’s statements had been found not to be completely groundless. At the same time, even though he had submitted certain material in evidence together with his report, he could not subsequently verify it as he had no longer been employed at the ENA and his requests to the domestic courts to require ENA to submit such evidence had been to no avail.
Regarding the applicant’s good faith there was nothing to suggest that the thrust of the impugned statements had been primarily to accuse V.B. The Government’s allegations that he had made his report out of personal animosity had not been discussed, let alone confirmed by the domestic courts. It was noteworthy that in his report the applicant had specifically asked the company to “check the facts stated” and, as submitted in his appeal in the impugned proceedings, his aim had been that the company investigate the information reported. He therefore had notified the competent internal authority of conduct which to him had appeared irregular or unlawful. In that context, the addressees of the disclosure were also an element in assessing the applicant’s good faith. The applicant had not had recourse to the media or any other external investigative body, but had attempted to remedy the situation complained of within the company itself.
(ε) Severity of the sanction – The domestic courts had ordered the applicant to issue a “public apology” and imposed a substantial sum of damages on him. resulting in the applicant’s flat and car being seized to be sold at public auction. Notwithstanding the absence of any information whether the applicant’s property had been sold, the Court was satisfied that it had been capable of affecting disproportionately the applicant.
(στ) Conclusion – The Court, having weighed up all the interests involved, concluded that the interference with the applicant’s right to freedom of expression had not been “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 41: EUR 4,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage reserved.
(See also Guja v. Moldova [GC], 14277/04, 12 February 2008, Legal Summary; Halet v. Luxembourg [GC], 21884/18, 14 February 2023, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
To access legal summaries in English or French click here.
For non-official translations into other languages click here.