THIRD SECTION

DECISION

Application no. 60566/10 Aleksey Nikolayevich MUMOLIN against Russia

The European Court of Human Rights (Third Section), sitting on 14 December 2021 as a Committee composed of:

María Elósegui, President, Darian Pavli, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 60566/10) against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 October 2010 by a Russian national, Mr Aleksey Nikolayevich Mumolin, who was born in 1970 and lives in Tolyatti, Samara Region (“the applicant”) who was represented by Mr I.I. Sharapov, a lawyer practising in Moscow;

the decision to give notice of the application to the Russian Government (“the Government”), represented by Mr G. Matyushkin, the then Representative of the Russian Federation to the European Court of Human Rights, and later by Mr M. Vinogradov, his successor in that office;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The applicant, a neighbourhood police officer at the material time, made public statements – a video appeal and an interview to a newspaper in November and December 2009 respectively, and held a solo protest, during which he was also interviewed by journalists, in March 2010.

2. In his public statements and during the solo protest the applicant asserted that he and other policemen had been overloaded with useless administrative tasks diverting officers from working in their neighbourhoods; that the neighbourhood police officer’s objectives were based on monthly targets of opening three criminal and fifteen administrative case files, a system fraught with perverse incentives (палочная система) in that policemen were thereby prompted to open fake cases or, as it had happened to him, to risk a poor appraisal, re-attestation and deprivation of payment benefits. The applicant considered that system to be counterproductive and the reason behind the public’s worsening attitude towards the police. He finally submitted that the police were underpaid and understaffed, that he had to work alone in respect of three neighbourhoods, during weekends and holidays, but no compensation for the extra duty work was paid; and that he and other policemen had to buy stationery and office supplies at their own expense or with donations from persons released on parole.

3. After the first two public statements the applicant was reprimanded and after the third one he was dismissed. The national courts declared lawful the disciplinary penalties applied to the applicant, including his eventual dismissal.

4. The applicant complained that the disciplinary penalties and, ultimately, his dismissal from the police following his public statements had been at variance with Article 10 of the Convention guaranteeing protection to whistle-blowers.

THE COURT’S ASSESSMENT

5. General principles on whistle-blowing have been summarised in Guja v. Moldova [GC] (no. 14277/04, §§ 69-78, ECHR 2008).

6. It was not disputed that the disciplinary penalties applied to the applicant constituted an interference with his rights under Article 10 of the Convention and were ‘in accordance with the law’ and in pursuit of a legitimate aim.

7. The parties disagreed as to whether the applicant’s public statements concerned a matter of public interest and what were the applicant’s motives behind his statements. The applicant believed that he had disclosed information about the police being unable to perform properly and efficiently its public function and, therefore, of significant public interest, especially in view of the then ongoing debate on the police reform. The national courts had considered that the applicant’s statements had focused more on his personal grievances, such as his poor appraisal, re-attestation, alleged non-payment of extra-duty allowances and other payment benefits, expenses on office supplies, and, therefore, had been motivated by personal interests and, therefore, had not contributed to the public debate on the police reform.

8. As submitted by the Government and stated by the national courts, prior to his public statements the applicant had never attempted to raise any of his concerns, especially any labour law issues, either with his superiors, or before a court. The applicant did not contest the above and did not claim that no other, more discreet, effective means of remedying the situation had been available to him.

9. As for the authenticity of the information disclosed by the applicant, the national courts held, based on the results of internal and/or local prosecutor’s office’s inquiries, that the applicant’s statement concerning fake criminal and administrative cases initiated by the police just to comply with their objectives had not been confirmed and that the applicant himself had admitted to not knowing any particular instances of such. As for understaffing, that issue was confirmed, however, it had been caused by objective reasons and not by any wilful or negligent actions of the police leadership. The lack of office supplies and uniforms was not confirmed – those were provided based on requests from policemen and the applicant had not submitted any such requests. The applicant’s allegations about non ‑ payment of extra-duty and other allowances were also not confirmed.

10. As for the detriment to the police and its leadership, the national courts considered that the applicant’s statements implying fake criminal and administrative cases and lack of sufficient staff and funds, impairing the police’s capacity to perform their public function, were definitely prejudicial to the reputation of the police.

11. As for the severity of the sanctions, the national courts held that the applicant had been subjected to disciplinary penalties (warnings), which were not a particularly severe sanction. It was only after the cumulation of three disciplinary omissions by the applicant that he had been dismissed.

12. Based on the above it may be concluded that the applicant’s public statements touched upon matters of public interest, but also contained an account of his personal grievances and were motivated by those (see Guja , cited above, § 77). None of those issues, however, had been raised by the applicant with his superiors or before a court, prior to making his public statements. The issue most significant for the public debate – the objectives’ system allegedly prompting fake criminal and administrative cases – had been obviously prejudicial to the police’s reputation, but had not had a clear factual basis (see, mutatis mutandis , Szima v. Hungary , no. 29723/11, § 32, 9 October 2012). Most of other issues, except for understaffing, also had not been factually confirmed. Disciplinary penalties applied in respect of each of the three public statements were not particularly severe and, therefore, cannot be considered as disproportionate, especially in view of the applicant’s duty of loyalty (ibid.). The applicant’s dismissal took place only after the third disciplinary offence.

13. The applicant also claimed that he had been penalised and dismissed due to a legal blanket ban for policemen to make any public statements about State authorities. However, the national courts had validated the disciplinary penalties in his respect not by simply having stated a breach of the relevant laws, but also after having assessed the factors relevant for such situations in accordance with the Court’s case-law: existence of a public interest, motives and alternative means of raising the concerns, veracity of statements, detriment to the employer, severity of sanctions.

14. Therefore, the national courts, having regard to the criteria developed in the Court’s case-law, adduced relevant and sufficient reasons for their findings that, in these circumstances, disciplinary penalties and dismissal of the applicant, having regard to the prejudicial effect of his statements on the police reputation, and the applicant’s duty of loyalty, were justified. Therefore, the interference complained of was not disproportionate to the legitimate aim pursued and thus may be regarded as “necessary in a democratic society” within the meaning of paragraph 2 of Article 10 of the Convention.

15. It follows that the present application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 January 2022.

Olga Chernishova María Elósegui Deputy Registrar President