CEDH · CASELAW;CLIN;ENG — 9 janvier 2018

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Romania - 13003/04 Judgment 9.1.2018 [Section IV] Article 10 Article 10-1 Freedom of expression Dismissal of civil servant for writing article encroaching on his employers’ statutory mission to identify possible Securitate collaborators: no violation Facts – In 2000 the applicant was recruited by the National Council for the Study of Securitate Archives (“the CNSAS”) and in 2001 he published in a tabloid-type newspaper an article about the collaboration with the Securitate of certain leaders of the Romanian Orthodox Church. The CNSAS decided to dismiss him for breaching his duty of reserve. Pointing out that he had not been writing in his capacity as a civil servant, he challenged the relevance of those grounds but was unsuccessful. Law – Article 10: The applicant’s dismissal had constituted an interference with his right to freedom of expression. The interference was prescribed by law (namely by Article 45 (g) of the CNSAS rules governing the relationship of loyalty and trust between the CNSAS and its officials, and section   41 of Law no.   188/1999, which obliged civil servants to refrain from any act capable of causing damage to their employer). Having regard to the domestic context and to the time of the publication in question, the applicant could reasonably have expected that his remarks would have a negative impact on the image of his employer and, accordingly, that they would fall foul of those provisions. The measure pursued two legitimate aims: to prevent the disclosure of confidential information and to protect the rights of others. As to the first, even if the applicant had obtained the information disclosed in his article prior to his recruitment by the CNSAS, under the law it was for the CNSAS, on the basis of the information contained in the Securitate files compiled during the Communist regime, to decide whether the label of collaborator could be given to the various categories of people who had public duties, including the leaders of legally recognised religious denominations. As to the protection of the rights of others, the interference sought to protect the rights of the CNSAS by penalising conduct that was capable of undermining the authority of the public institutions. As to whether the interference was “necessary in a democratic society”, the Court first observed that the applicant was a civil servant bound by a duty of loyalty and discretion. The present case thus raised a separate issue from those relating to the obligations of journalists, where the breached duty of confidentiality would be that of a third party and not the journalists themselves, or cases concerning whistleblowing by employees about unlawful conduct or acts witnessed at work, involving the disclosure of information or documents of which they had knowledge in the course of their duties. Here the applicant’s remarks did not concern the activity of the CNSAS. The applicant had rather sought to provide the public, in his capacity as historian, with information about the collaboration of religious leaders with the Securitate . Further, the Court took the view that the reasons provided by the CNSAS and the domestic courts in imposing the sanction on the applicant had been relevant and sufficient in respect of the two legitimate aims identified. (a)     First aim: to prevent the disclosure of confidential information – The applicant’s duty of reserve could not be superseded by any interest that the public might have in questions arising from the application of the law on access to Securitate archives. On the contrary, the risk of manipulating public opinion on the basis of a reduced number of documents from a file added more weight to the duty of loyalty towards the CNSAS, whose role and duty it was to provide the public with reliable and trustworthy information. In reaching that conclusion, the Court noted in particular as follows: (i)     It fell within the statutory remit of the CNSAS to determine the question of the collaboration with the Securitate of individuals exercising public duties. (ii)     The applicant’s dismissal had been decided after a disciplinary procedure, ensuring a fair hearing and with a right of appeal to the domestic courts. (iii)     Even though the applicant had alleged that his aim was to inform the public about a matter of general interest, a number of factual elements cast doubt on his conduct. Being published in a tabloid-type newspaper, his remarks were not made in an academic context; even before the CNSAS had verified the documents in question the applicant had presented his comments as if they were the established truth, with the risk of conveying a distortion of reality to public opinion; lastly, the remarks were not an immediate or off-the-cuff reaction in a rapid and spontaneous verbal exchange, but written claims published with the benefit of prior reflection. (b)     Second aim: the protection of the rights of others – The applicant had chosen not to criticise publicly the manner in which his employer had or had not assumed its statutory role, but to substitute his own opinion for that of his employer and to make disclosures that fell within the institution’s remit. Even though the applicant had not, in the offending article, made reference to his capacity as an official of the CNSAS, he could not have been unaware of the impact of its publication for his employer. In addition, the press had not been unaware that he was a CNSAS official and had widely relayed his comments. Consequently, his statement could easily have been perceived by the public as the official position of the CNSAS or, at least, as emanating from that institution. This interpretation of the duties arising from his status as civil servant was not unreasonable, since it was in the interest of the CNSAS to distance itself from its employee, in order to preserve the public’s trust in that institution’s ability to handle a sensitive question for Romanian society. *** Lastly, as to the proportionality of the sanction, even though the dismissal had been a very harsh measure, having regard to the applicant’s post, the CNSAS had legitimately been able to take the view that his public stance on a sensitive subject falling within the field of his research, had irretrievably undermined the trust that had to be maintained in their employer-employee relationship. Moreover, subsequent to his dismissal the applicant had been reinstated into the civil service, being appointed to a teaching post. Therefore, the applicant’s dismissal from the civil service had not been a disproportionate sanction. Conclusion : no violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes