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03.04.2018

Court rules on retaliation against Moldavian whistleblower   

By Emil Weber 

The European Court of Human Rights (ECtHR) ruled on 27 February 2018 that retaliation measures against a whistleblower by the state of Moldova amounted to violation of freedom of expression according to Article 10 of the European Convention.

Building of the European Court of Human Rights Building of the European Court of Human Rights (photo: CherryX)

Whistleblower Iacob Guja was dismissed in 2003 from the position of the Head of the Press Department of the Prosecutor General’s Office. His disclosures, alleging that a political leader was putting pressure on police officials in the prosecutor’s office had been published in newspaper articles. 

Following an ECtHR judgement in 2008, which found the dismissal in breach of his right to freedom of expression, Mr. Guja was re-instated in his position by the domestic Supreme Court of Justice during the same year. 

But on the day of his reinstatement, on 5 June 2008, the Prosecutor General’s Office asked for the trade union to approve Mr. Guja’s dismissal. He was not provided with an employee’s pass to allow him to access the building, a work space in office, nor any tasks. He was dismissed again on 16 June 2008 under the argument that there was a new prosecutor since 2007 and that he had the power to remove him under the Public Service Act. The dismissal of Mr. Guja was upheld by the domestic courts. 

The ECtHR however has unanimously ruled that the dismissal amounted to a violation of the right of freedom of expression and charged Moldova to pay 11,500 Euros to Mr. Guja in non-pecuniary damages and costs. 

"An act of retaliation"

“The Court considers that there are sufficiently strong grounds for drawing an inference that the applicant’s second dismissal from his employment […] had all the characteristics of another act of retaliation for his [whistleblowing] in 2003”, the ECtHR judgement read.

According to the top European human rights court, between 2003 and 2008 despite changes of general prosecutors Mr. Guja was the first head of the press department to be dismissed under the Public Service Act. It further said it finds it “unusual for an employer acting in good faith to employ a person and simultaneously seek his or her dismissal”. 

“The state authorities only created the appearance of reinstating [Mr. Guja] in the position he occupied before 2003, while in reality they continued the retributory measures against him”, the ruling said. 

The ECtHR observed that the domestic courts “paid no attention at all” to the way Mr Guja was treated at work after his reinstatement and that they failed to examine whether his second dismissal was justifiable. 

“Instead of […] examining the factors which were central and essential under the Convention, the domestic courts limited their examination of the case to verifying whether formalities such as the trade unions’ approval had been obtained, and whether […] the Public Service Act was applicable”, the ECtHR ruled. 

On the contrary, the court said the central issue in the case was to determine “whether or not the applicant’s second dismissal from his employment constituted an attempt by the authorities to dispose of an employee whom they deemed inconvenient in the light of the events of 2003”.

Case of Guja v. Moldova, application no. 1085/10. 27 February 2018





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