December 08, 2016
By Stijn Smet
A few weeks ago, a Section of the European Court of Human Rights ruled that the Armenian government had not exceeded its margin of appreciation by summarily dismissing senior civil servants who had voiced critical remarks on the democratic nature of the 2008 presidential elections in Armenia. The Court’s view on the need for a ‘politically neutral body of civil servants’ in its Karapetyan and Others v. Armenia judgment is worrying. It risks demoting senior civil servants to mere lackeys of the executive, impeding them from playing a potentially vital role in defending democracy and the rule of law.
Facts of the case
Karapetyan and Others v. Armenia revolved around the 2008 presidential elections in Armenia, won by the ruling government’s candidate. International reports noted shortcomings in the electoral process. The OSCE, for instance, found that the elections displayed serious shortcomings after election day, which ‘devalued the overall election process’. Its report noted, among others, that ‘the vote count demonstrated deficiencies of accountability and transparency’ and that ‘there was an evident lack of public confidence in the election process’. Indeed, part of the Armenian electorate held peaceful protests in the wake of the elections. On 1 March 2008, however, violence between police and protesters broke out. Ten persons died and some 200 others were injured. Human Rights Watch exposed the excessive use of force by the police against protesters during the events of 1 March 2008 and criticized the skewed prosecution in its wake (including ‘politically motivated trials’).
In this context, the applicants in Karapetyan released a statement on the democratic nature of the presidential elections. All four applicants held high ranking positions within the Armenian Ministry of Foreign Affairs. Their statement, signed in their official capacity, was issued in support of an earlier statement by several ambassadors for Armenia in foreign countries. It read, in relevant part:
By joining the statement issued by our colleagues … we express our concern with the situation created in Armenia … 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.
Shortly afterwards, the applicants were summarily dismissed for having breached legislation that required them to refrain from engaging in political activities.
The Court’s judgment
The ECtHR was, of course, aware of the disputed democratic nature of the 2008 presidential elections. The Court specifically referenced a 2008 resolution of the Parliamentary Assembly of the Council of Europe, in which it ‘regrets that the violations and shortcomings observed did nothing to restore the currently lacking public confidence in the electoral process and raised questions among a part of the Armenian public with regard to the credibility of the outcome of the election’.
Yet, the Court did not consider it the applicants’ role to speak out on the democratic deficit of the elections. It instead recalled the importance of ‘the special bond of trust and loyalty between a civil servant and the State’. The Court found this loyalty to be even more important ‘in societies which are in the process of building up the institutions of a pluralistic democracy’. ‘[S]o as to ensure the consolidation and maintenance of democracy’, it ruled, states may introduce ‘constitutional safeguards to achieve the aim in a democratic society of having a politically neutral body of civil servants’. Applying these background principles to the case at hand, the Court found against the applicants.
Several elements were relevant in the Court’s assessment: a) all applicants held high-ranking positions in the administration, b) they had made the statement in their official capacity, c) the context of political crisis, and d) the applicants’ expertise was not conducive to an informed debate on issues of public interest. On the last point, the Court distinguished Karapetyan from the recent Grand Chamber judgment in Baka v. Hungary, concerning criticism by the former president of the Hungarian Supreme Court on the Orbán-Government’s reform of the judiciary (see post here). ‘Contrary to the present [application]’, the Court noted in Karapetyan, ‘the Baka case concerned a public servant who had a specific statutory duty … to express his opinion on legislative reforms affecting the judiciary’. Lacking such a duty, the applicants in Karapetyan did not enjoy the protection of freedom of expression.
Comment: civil servants as defenders of democracy or lackeys of the executive?
The Court’s emphasis on ‘a politically neutral body of civil servants’ in Karapetyan is troublesome, because it appears to reduce civil servants to mere lackeys of the executive, rather than potential defenders of democracy. Yet, there are good reasons to consider the alternative viewpoint. Unlike politicians, who often think mostly in terms of the next elections and thus short term, civil servants need not worry about ‘surviving’ the next election. Their long(er) term appointment allows them to consider not only the immediate, but also the distant future of a democracy (in ideal circumstances, of course). Concurring judges Sicilianos and Mahoney recognised as much in Karapetyan, noting that
in extreme instances not merely the active collaboration of civil servants in the commission of human rights abuses by the authorities but even their passivity in the face of such abuses may be condemnable in human rights terms.
But, they found, the circumstances in Karapetyan were not ‘of such an extreme instance’. Moreover, they noted, the applicants had focused their defence on arguing that the statement was neutral and not political. Blaming things on the applicant’s defence strategy offered the concurring judges a relatively easy way out of the case. But here I will take a brief look at the harder questions and the potential ramifications of the Court’s Karapetyan judgment.
A crucial factor in the Karapetyan case was that the applicants spoke out against the ruling government. Had they spoken in favour of the government, for instance by emphasising the fair nature of the elections and calling on protesters to accept the results, they would probably not have been dismissed. Yet, the latter is – of course – also a political activity. This crucial element was seemingly not brought before, and definitely not examined by the Strasbourg Court. Nevertheless, as the Fair Employment Tribunal of Northern Ireland showed just last month in Sarah McCrossan v. Department for Social Development, it may well be a crucial factor to establish the existence of discrimination on grounds of political opinion.
The case of Sarah McCrossan differs from the Karapetyan case. Sarah McCrossan is a junior civil servant who had published a post in her private name on Facebook, rather than a senior civil servant who had written a public statement in his/her official capacity. But her message was comparable, in that she vehemently criticised the ruling government’s choices on health care, employment, same-sex marriage and other issues, before concluding with the not to be misunderstood ‘Well done UK, Maggie would be proud, there will be “no such thing as society” in five years!’. Sarah McCrossan was given a one-year formal written warning in disciplinary proceedings, which the Fair Employment Tribunal considered to constitute discrimination. Most importantly for our current concerns, the Tribunal found that the Facebook post was ‘deemed to be on controversial issues [precisely because] the view expressed was not aligned with that of the Minister’. In the converse situation, the Tribunal noted, Ms. McCrossan would likely not have faced disciplinary charges.
Although there are central differences between the McCrossan and Karapetyan cases, there is at least one salient commonality, which could have played a role in the European Court’s reasoning (but did not). The OSCE found, in its report on the 2008 presidential elections, that ‘[m]any local government officials actively campaigned for [the candidate of the ruling government], some whilst performing official duties, [and there] were accounts of local government employees and public-sector workers being obligated to attend [his] campaign events’. As the OSCE noted, this ‘conflicted with legal provisions’. The same legal provisions, presumably, under which the applicants in Karapetyan were dismissed. Yet, civil servants who had aligned themselves with the government were not fired for having engaged in political activities. This indicates that the political neutrality of the body of civil servants was not as pertinent to the Karapetyan case as the Strasbourg Court made it out to seem (or assumed it was).
But it is not only important to consider alternative approaches to the Karapetyan case. It is at least as vital to examine the potential ramification of the actual Karapetyan ruling. Consider a view examples. Just last month in the United States, CIA director John Brennan publicly warned President-elect Donald Trump that scrapping the nuclear deal with Iran would be ‘disastrous’ and ‘the height of folly’. Also last month, but then in Belgium, an investigative judge stated in an interview with a leading magazine that the Belgian executive, and the Minister of Justice in particular, wanted to ‘break the judicial branch’. Still last month, also in Belgium, a senior civil servant published a damning opinion piece in a leading newspaper, openly criticizing the political decisions of a member of the executive. He particularly lamented that the decisions had been taken ‘from an ivory tower, without any consultation and with complete disdain for the efforts of our people’ by a ‘man with a flagrant lack of empathy’.
All the above very much sound like statements on political issues. But would they (hypothetically speaking, especially in the US case) fall under the Court’s Karapetyan principle on the ‘politically neutral body of civil servants’? Or would they be protected by the Baka rule that protects civil servants who have ‘a specific statutory duty’ to speak out on issues that fall within their expertise. I dare not say with confidence that it would be the latter. And this is worrying, because it bars senior civil servants from speaking out in defence of democracy and the rule of law.
In her dissenting opinion in Karapetyan, judge Lazarova Trajkovska noted that the case ‘should be referred to the Grand Chamber’. She has a point.
 On a side note, the ECtHR summarily dismissed the applicants’ non-discrimination claim in Karapetyan, as it often does, by finding that ‘the facts complained of do not disclose any appearance of a violation of the applicants’ rights under the Convention’.