EHRM, 12-02-2008, nr. 14277/04

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:

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.

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:

On 31 January 2003 the Jurnal de Chişinău published an article entitled: ‘Vadim Mişin intimidates the prosecutors’. The article stated inter alia:

The newspaper article was accompanied by pictures of the letters signed by Mr Mişin and Mr Ursachi.

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:

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:

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).

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.

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.

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.

The relevant sections of the 2004 report of the International Commission of Jurists (ICJ) on the rule of law in Moldova stated:

The 2003 Freedom House report on Moldova stated, inter alia, that:

The 2003 Report by Open Society Justice Initiative and Freedom House Moldova stated, inter alia, the following:

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 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

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.

The Council of Europe's Criminal Law Convention on Corruption of 27 January 1999 reads in so far as relevant:

The Explanatory Report to this Convention states as follows with regard to Article 22:

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:

The Explanatory Report to this Convention states with regard to Article 9:

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:

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.

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.

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.

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’.

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.

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.

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.

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.