CASE OF KARAPETYAN AND OTHERS v. ARMENIA
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
5. The applicants, Mr Vladimir Karapetyan (the first applicant), Ms Martha Ayvazyan (the second applicant), Mr Araqel Semirjyan (the third applicant) and Ms Karine Afrikyan (the fourth applicant), are Armenian nationals who were born in 1969, 1967, 1973 and 1954 respectively and live in Yerevan. 6. At the material time, the applicants occupied different posts within the Ministry of Foreign Affairs, namely Head of Press and Information Department, Head of NATO Division of Arms Control and International Security Department, Counsel of the European Department and Head of USA and Canada Division of the American Department respectively. 7. On 19 February 2008 a presidential election was held in Armenia. The main contenders were the then Prime Minister, Serzh Sargsyan, and the opposition candidate, Levon Ter-Petrosyan. Immediately after the election, Levon Ter-Petrosyan announced that the election had been rigged. From 20 February 2008 onwards nationwide protests, such as demonstrations and sit-ins, were organised by thousands of Levon Ter-Petrosyan’s supporters. 8. On 23 February 2008 several ambassadors for Armenia in foreign countries made the following statement: “We, the undersigned, remaining faithful to our calling as Armenian diplomats and led by our feeling of responsibility before the Republic of Armenia and the Armenian people, with concern for the situation which has arisen in Armenia, with profound respect for the right of Armenian citizens to free elections, with the conviction that only a president elected as a result of free and fair elections can best tackle the challenges facing our country on the international level and substantially raise the international image of Armenia, express our support to our compatriots who have risen to struggle for freedom, protection of the right to a fair election and establishment of true democracy in Armenia. Considering the preservation of stability in the country important and public accord necessary, we appeal to our compatriots and especially the representatives of all the structures in the country responsible for maintaining public order and peace to avoid the temptation of resolving problems by use of force. We appeal to all television companies in Armenia, and especially to Armenian Public Television, to ensure impartial and comprehensive coverage and to provide live airtime to representatives of all the powers who have a constructive position in overcoming the current inner-political crisis. We appeal to all our colleagues working both in Armenia or abroad to join our statement.” 9. This statement was reported by the mass media on the same day. According to the first applicant, he also received the statement via his electronic mail. According to the Government, the ambassadors who issued this statement were dismissed from their posts the following day and their dismissal was widely reported in the media. 10. On 24 February 2008 the applicants made the following statement: “By joining the statement issued by our colleagues from the Ministry of Foreign Affairs we express our concern with the situation created in Armenia, fraught with internal and external undesirable challenges, and outrage against the fraud of the election process, which shadow the will of our country and society to conduct a civilised, fair and free presidential election. As citizens of Armenia, we demand that urgent steps be undertaken to call into life the recommendations contained in the reports of the international observation mission, as well as other prominent international organisations. Only by acting in conformity with the letter and spirit of the law can we create democracy and tolerance in Armenia and earn the country a good reputation abroad.” 11. The names of the applicants, with the indication of their office, appeared under the statement. It appears that this statement was reported by several mass media outlets, including Radio Liberty, on the same day. 12. On 25 February 2008 the Minister for Foreign Affairs of Armenia adopted decrees dismissing the first, second and third applicants from office. The fourth applicant was dismissed from office by a similar decree on 3 March 2008. As a ground for the dismissals, the decrees referred to sections 40, subsection 1, point (j) and 44, subsection 1, point (c), of the Diplomatic Service Act (ՀՀ օրենքը «Դիվանագիտական ծառայության մասին», containing description which stated, inter alia, that a diplomat had no right to use his official capacity and work facilities for the benefit of parties and non-governmental organisations, or in order to carry out other political or religious activity (see paragraphs 22-24 below). 13. On an unspecified date in March 2008, the applicants instituted administrative proceedings challenging their dismissal and seeking to be reinstated in their work. In particular, they claimed that the decrees on their dismissal contained no reasons regarding the particular instance where they had made use of their official capacity and work facilities for the benefit of parties or non-governmental organisations or for engaging in political or religious activities, as prohibited by the sections of the Diplomatic Service Act. They also claimed that dismissal on the ground of convictions and opinions was prohibited by law. 14. On 10 April 2008 the Ministry of Foreign Affairs, as a respondent, lodged a response with the Administrative Court (ՀՀ վարչական դատարան), claiming that the applicants, by making their statement of 24 February 2008 which had then been reported by the mass media and announced during the demonstration, had engaged in political activities. Furthermore, the applicants had made use of their official capacity since they indicated their official titles in the statement. 15. On 29 May 2008 the Administrative Court dismissed the applicants’ claim, finding that their dismissal from work was lawful since the applicants, by making the impugned statement, in essence had engaged in political activity. In this respect, the Administrative Court mentioned that the impugned statement concerned political processes as it contained a political assessment of election and post-election events. Furthermore, that statement, as well as that of the ambassadors, had been read aloud during the demonstration organised by a political force and had received a political assessment. The Administrative Court also found that the applicants, by indicating their post titles, had made use of their official capacity. The applicants’ right to freedom of expression, as protected by Article 27 of the Constitution (ՀՀ Սահմանադրություն), was not breached since the applicants, in exercising that right, had made use of their official status and work facilities. Therefore, the restriction on that right was in compliance with Article 43 of the Constitution. Besides, the applicants had not been dismissed on the ground of their political opinion, but because in disseminating that opinion they had made use of their official status, which was prohibited by law. 16. On an unspecified date, the applicants lodged an appeal on points of law against the judgment of the Administrative Court, claiming, inter alia, a violation of their right to freedom of expression, as protected by Article 10 of the Convention. Besides, they claimed that they had been discriminated against on grounds of political opinion, in violation of Article 14, since those diplomats or state officials who had expressed publicly their support for the pro-governmental candidate had never faced any sanctions: the true reason for their dismissal was their critical opinion of government actions in the sphere of human rights and democratisation. They also claimed that their dismissal had been based on an erroneous interpretation of sections 40, subsection 1, point (j) and 44, subsection 1, point (c), of the Diplomatic Service Act since they had not made use of their official capacity or work facilities when making the impugned statement. Furthermore, the statement had not been made for the benefit of any political party and it could not be qualified as political activity as such. 17. On 23 September 2008 the Court of Cassation (ՀՀ վճռաբեկ դատարան) decided to declare the applicants’ appeal on points of law inadmissible for lack of merit.