Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
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The European Court of Human Rights found that it was not a violation of the right to freedom of expression for a civil servant to have been dismissed for disclosing information to the press in such a way that undermined the public confidence in his employer. The civil servant worked for a public authority that was responsible for officially pronouncing on whether individuals had collaborated with the secret police of the Socialist Republic of Romania. In this case, the civil servant had disclosed two documents to the press that he did not obtain from his employer, but that allegedly demonstrated that a leader of the Romanian Orthodox Church collaborated with the secret police. The domestic courts ruled that the civil servant had violated the internal provisions of his employer by disclosing documents to the press that were related to the competence of his employer, and that the dismissal followed proper procedure. The European Court of Human Rights took the view that the dismissal pursued the “legitimate aims” of preventing the disclosure of confidential information and protecting the rights of the public authority. It went on to say that it was legitimate for the public authority to take the view that the dismissal was necessary because the civil servant’s disclosure irreparably harmed the relationship of loyalty and trust that should exist between a civil servant and a public authority. As a result, the European Court of Human Rights found the dismissal to be “necessary in a democratic society”.
In 2000, Mr. Gabriel Catalan was recruited to a position of adviser at the Archives Department of the National Council for the Study of Securitate Archives (CNSAS). The Securitate was the name given to the secret state police of the Socialist Republic of Romania. Under domestic law (Law no. 187/1999), CNSAS had the official role of informing the public about individuals who had collaborated with the Securitate. Shortly after his recruitment, Mr. Catalan signed a confidentiality agreement in which he undertook not to disclose information obtained during the course of his employment.
On March 22, 2001, a daily tabloid newspaper, Libertatea, published an article entitled: “In his youth, T. [the patriarch of the Romanian Orthodox Church then in office] was probably gay”. A heading at the top of the page read: “The archives of the former Securitate accuse the head of the Orthodox Church of ‘unnatural practices’ and collaboration with the former political police”. The article reproduced extracts of two unpublished documents from the Securitate archives. One of the documents was an internal summary stating that T. had been a member of the “Legion” (an anti-Semitic fascist movement between the two world wars), had participated in the burning down of a Synagogue, and was gay. The article was signed by Mr. Catalan’s brother, and Mr. Catalan was explicitly credited for having made available the two documents in his capacity as a historian. According to the article, Mr. Catalan had indicated that he had obtained the documents while studying the archives of the Romanian Intelligence Service.
Following the publication of the article, the CNSAS issued a press release in which it distanced itself from Mr. Catalan’s claims in the article, and which stated that Mr. Catalan had infringed his duties as a civil servant. Shortly thereafter, Mr. Catalan was invited by CNSAS to explain the circumstances of the publication, including how he had communicated the information to the press and how he had gained access to the documents. He was also asked whether, in his opinion, he had complied with the applicable legislation. Mr. Catalan refused to answer. He was then summoned for a hearing with the Disciplinary Committee of CNSAS. The Disciplinary Committee responded to a number of Mr. Catalan’s questions before the hearing and confirmed that the facts alleged against him contravened Article 45(g) of the CNSAS internal regulation that sanctioned “demonstrations affecting the prestige of the authority or institution.”
On March 23, 2001, the Disciplinary Committee decided, by a majority and in his absence, to dismiss Mr. Catalan for misconduct on the ground that he had undermined the prestige and authority of CNSAS. Mr. Catalan appealed this dismissal before the Bucharest Court of Appeal and then the Supreme Court of Justice. These courts found that his conduct and statements had violated the internal regulation of his employer, and the disciplinary procedure had been respected. The Bucharest Court of Appeal also found that there had not been a violation of Mr. Catalan’s right to freedom of expression since he should have complied with his obligations as a civil servant.
After his dismissal, Mr. Catalan joined the national education system as a teacher.
Mr. Catalan brought a claim to the European Court of Human Rights arguing that his dismissal on the basis of opinions expressed by him in the newspaper article violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. More precisely, he complained that the dismissal was not “prescribed by law” and did not pursue a “legitimate aim”. He believed that the dismissal was aimed at protecting T., and that the dismissal amounted to an interference with his attempt to find historical truth about T.’s alleged collaboration with the communist regime. He also reasoned that the CNSAS’ confidentiality agreement was irrelevant since he had obtained the documents legally prior to his employment with CNSAS. Moreover, he argued that the interference was not “necessary in a democratic society” and the dismissal was not a proportionate sanction. The Government responded by arguing, among other things, that the dismissal was justified because Mr. Catalan’s conduct undermined the credibility and authority of the public authority. The Government acknowledged that the documents were obtained from the Romanian Intelligence Service prior to Mr. Catalan’s employment with CNSAS, but stated that the documents were confidential. The Government argued that Mr. Catalan’s opinions could still be interpreted as being the official position of CNSAS (which was responsible for informing the public about collaborators).
The European Court of Human Rights (Court) found Mr. Catalan’s dismissal not to have amounted to a violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention).
The Court first acknowledged that there was no dispute between the parties that Mr. Catalan’s dismissal constituted an interference with his right to freedom of expression. The Court then went on to consider whether the interference was “prescribed by law”. The Court recognized that the dismissal was based on Article 45(g) of the CNSAS internal regulation, which was designed to preserve the loyalty and trust of civil servant employees. It also noted that other provisions under domestic law required civil servants to demonstrate professionalism, loyalty, probity, and required that they refrain from conducting themselves in such a way that would prejudice their employer (Article 41 of Law 188/1999). In light of this, the Court found that Mr. Catalan could reasonably have expected that his comments in the article would have a negative impact on the image of his employer and would fall within Article 45(g) of the CNSAS internal regulation. The interference was, therefore, “prescribed by law”.
The Court then went on to find that the dismissal pursued two “legitimate aims”: (i) the prevention of the disclosure of confidential information, and (ii) the protection of the rights of CNSAS. With regard to the former, the Court acknowledged that the documents were obtained before Mr. Catalan was employed by CNSAS, but highlighted that it was the responsibility of CNSAS to officially pronounce on the status of collaborators based on information obtained from the Securitate archives. With regard to the latter, the Court noted that employees of the public service are subject to an obligation of loyalty and, therefore, it could be legitimate for domestic authorities to punish behavior that could, in their opinion, undermine the authority of public institutions.
It was then left to the Court to determine whether the interference was “necessary in a democratic society”. At the outset, the Court noted that civil servants were entitled to protection of their right to freedom of expression, but also clarified that civil servants had a heightened obligation to display loyalty and discretion towards their employer. The Court went on to consider whether the domestic authorities provided “relevant and sufficient” reasons for dismissing Mr. Catalan pursuant to each “legitimate aim”.
The disclosure of confidential information and the duty of discretion of a civil servant
The Court began by noting that its case law concerning the publication of confidential information was directed towards journalists, and Mr. Catalan was not carrying out the duties of a journalist. The Court also recognized that this case raised separate issues from those that are relevant to cases of whistleblowers, who are dismissed for disclosing information about unlawful conduct or acts in their workplace. The Court then considered a number of specific factors to reach the conclusion that Mr. Catalan was dismissed on “relevant and sufficient” grounds because he had breached his obligation of loyalty and discretion to CNSAS.
Firstly, the Court noted the subject matter of the disclosure and the context in which it was made. It noted that the subject matter fell within the competence of CNSAS, which was the authority responsible for deciding on whether public figures collaborated with the Securitate following an investigation of the archives. The Court also noted that the issue of collaboration was a sensitive subject to the whole of Romanian society. With this in mind, the Court reasoned that Mr. Catalan’s interest in informing the public was faced with another public interest, namely the interest in the role played by CNSAS in informing the public about collaborators.
Secondly, the Court noted that Mr. Catalan was able to take part in an adversarial disciplinary procedure and could appeal the dismissal to the domestic courts.
Thirdly, the Court noted that Mr. Catalan’s allegations had been published in a sensationalist national newspaper, and he had not participated in an academic debate.
Fourthly, Mr. Catalan made the statements as if they were certainties, at the risk of distorting public opinion. For instance, he did not specify that he was making a subjective assessment on the basis of the facts and documents available to him. The Court also noted that the statements were made in writing, rather than orally, which meant he had the opportunity to perfect them before publication.
Finally, the Court noted that Mr. Catalan was a civil servant and was subject to a duty of discretion inherent in his post, and that he should have shown greater care and particular moderation in his remarks.
The protection of the rights of others
In relation to the protection of the rights of others, the Court observed that the sensitive issue of whether officials at the Romanian Orthodox Church collaborated with the Securitate required that it be approached with caution and critical judgement. Mr. Catalan took the decision to disclose information in such a manner that he effectively took the place of the CNSAS, which by law had the responsibility of pronouncing on collaborators. He also did this at a time when the CNSAS was investigating religious leaders and had not yet made pronouncements on them. The Court considered Mr. Catalan’s actions to have undermined the authority of his employer and the public confidence in the institution.
The Court reasoned that although he did not explicitly declare he was a CNSAS employee, Mr. Catalan could not disregard the impact of the article on his employer. For example, the press knew he was one of its officials. Therefore, his statement could have been easily perceived by the public as the official position of the CNSAS or as emanating from the institution.
The Court went on to say that, by expressing himself publicly, Mr. Catalan had breached his duty of discretion as a civil servant, and CNSAS had acted within the scope of its relevant powers when it dismissed him. Moreover, it had been in the interest of the CNSAS to dissociate itself from Mr. Catalan in order to preserve public confidence in the institution.
Whether the interference was proportionate
Having determined that the domestic authorities had “relevant and sufficient” grounds to justify the dismissal, the Court went on to look at whether the dismissal was proportionate. The Court admitted that the dismissal was a very severe measure. Nonetheless, the Court found that, given CNSAS’ position, it was legitimate for it to consider that the public statements of Mr. Catalan on a sensitive topic irreparably compromised the relationship of trust that had to be maintained between the institution and its officials. Moreover, the Court noted that Mr. Catalan was able to rejoin the civil service as a teacher. Therefore, the Court did not consider the dismissal a disproportionate sanction.
Taking the above into account, the Court found that the interference with Mr. Catalan’s right to freedom of expression had been “necessary in a democratic society”. Accordingly, the Court found no violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression since the European Court of Human Rights (Court) found that the a civil servant’s obligation of discretion outweighed his right to disclose information to the press on matters of public interest. The Court distinguished the facts of this case from circumstances where a journalist might have disclosed confidential information in the public interest or where whistleblowers might have exposed unlawful activity in their workplace. Instead, the Court attached significant weight to the public image of the authority following the disclosure, and the fact that the disclosure fell within the authority’s competence as the institution responsible for making pronouncements on collaborators. Of particular concern is the Court’s apparent criticism of Mr. Catalan for choosing to disclose the information and impugned statements through the “sensationalist” media, rather than through more academic mediums. This does not reconcile the fact that Article 10 of the European Convention on Human Rights should protect not only the content of an individual’s expression but also the means they choose to express it.
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