In 2002, a criminal investigation was launched against four police officers who had been accused of ill-treatment and unlawful detention of ten persons suspected of “offences related to the parliamentary elections” (para. 9). Following the initiation of the proceedings, the four officers wrote to the President, Prime Minister, and Deputy Speaker of Parliament for protection from prosecution (para. 10). Soon after, the President made public statements calling upon law-enforcement officers to “disregard any attempts by public officials to put them under pressure” (para. 11). The criminal proceedings against the officers were dropped (para. 12).
A few days after the President made his statements, then-Head of the Press Department of the Prosecutor General’s Office Iacob Guja submitted two letters, not marked confidential, written by the Deputy Speaker of Parliament and a deputy minister in the Ministry of the Interior to the newspaper Jurnal de Chisinau (para. 13). One of the letters discussed the effective exoneration of one of the accused police officers (para. 14). On 31 January 2003, the Jurnal de Chisinau ran photographs of the two letters, accompanied by an article claiming that the Deputy Speaker of Parliament was intimidating prosecutors and shielding the four police officers (para. 15). Upon questioning by the Prosecutor General about the letters’ origin, Guja revealed that he had sent them in to “fight the scourge of trading in influence” (para. 18). Guja and a prosecutor suspected of supplying the letters to Guja were dismissed from their positions (paras. 19, 21).
Guja then sought reinstatement, arguing, inter alia, that the letters were “not classified as secret in accordance with the law,” that he was not required to consult the heads of other departments before contacting the press, and that his dismissal breached his right to freedom of expression (para. 22). The Chisinau Court of Appeal dismissed the action (para. 23). Upon appeal, the Supreme Court of Justice affirmed, explaining that “obtaining information through the abuse of one’s position was not part of freedom of expression” (para. 25).
Guja complained to the European Court of Human Rights, alleging that “his dismissal for the disclosure of the impugned letters […] 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” under Article 10 of the European Convention of Human Rights (para. 48).
According to Guja, “the disclosure of the letters had to be regarded as whistle-blowing on illegal conduct” (para. 60). He claimed he had “acted in good faith” and in conviction that the disclosed information “concern[ed] the commission of a serious offence by the Deputy Speaker of Parliament,” corruption and trading in influence (para. 61). The government argued that, since the letters were “internal documents to which [Guja] would not normally have had access by virtue of his functions,” Guja had effectively “stolen” the information (para. 64).
The Grand Chamber of the European Court of Human Rights established that Article 10 was applicable to the present case, over protests by the government that “there had been no interference” with Guja’s right to freedom of expression since he was not the author of the articles (paras. 50-55).
The court pointed out that, while Article 10 does apply to the workplace as Guja alleged, employees also “have a duty of loyalty, reserve and discretion to their employer” (para. 70). Civil servants in particular have a duty of discretion that is generally strong, since they often have access to information which the government, “for various legitimate reasons, may have an interest in keeping confidential or secret” (para. 71). In light of this duty, civil servants should disclose first, if at all, to their “superior or other competent authority or body” (para. 73). Public disclosure is a “last resort” option, only to be used where disclosure to a superior or other competent authority is “clearly impracticable” (para. 73). It is thus relevant whether “other effective means of remedying the wrongdoing which [Guja] intended to uncover” were available to him (para. 73). Given that the Moldovan laws did not contain any provisions “concerning the reporting of irregularities by employees” and that Guja’s superior revealed no intentions to respond to his concerns, the court found that Guja had no effective alternative channels for disclosure (paras. 81-84).
In addition, the Court considered several other factors to decide if the interference was proportionate to the aim pursued. First, the court found that the disclosed information “had a bearing” of weighty issues of public interest, such as “separation of powers, improper conduct by a high-ranking politician and the government’s attitude towards police brutality” (para. 88). Second, there was little dispute that the letters had been genuine, thus the authenticity of the information could not be questioned (paras. 26, 89). Third, although disclosure could have had “strong negative effects on public confidence” in the Prosecutor General’s Office, in that the newspaper article suggested the Office was “subject to undue influence,” the court nevertheless concluded that the public interest in disclosure was “so important” that it outweighed the interest in maintaining public confidence in the office (paras. 90-91). Fourth, Guja acted in good faith (para. 77), and fifth, t the harsh penalty imposed on Guja “not only had negative repercussions on [his] career” but also could have given rise to “a serious chilling effect on other employees from the Prosecutor’s Office” and thus was “difficult to justify” (paras. 95-96).
The court concluded that the government had violated Article 10 of the Convention (para. 97).
Judgment of the Court.
Global Principles on National Security and the Right to Information ("The Tshwane Principles").