CONCURRING OPINION OF JUDGES SICILIANOS AND MAHONEY

We have voted with the majority in holding that no violation of Article 10 of the Convention can be found on the basis of the material before the Court. We would however have preferred that, for the sake of clarity, the judgment contain more developed reasoning on the issue of the proportionality of the interference with the applicants ’ exercise of their freedom of expression.

Paragraph 60 of the judgment reads:

“As to the sanction, the Court considers that the dismissal of the applicants, although severe, did not constitute a disproportionate measure, taking into account the particular circumstances of the case and the available options under the law.”

This is a general affirmation, the only specification of the grounds for the conclusion arrived at being ‘ the particular circumstances of the case ’ and ‘ the available options under the law ’ ”.

The latter mention is presumably a reference to section 40(1) of the Diplomatic Service Act, which appears to prescribe dismissal from office as the sole sanction available for misconduct contrary to section 44 of the Act (see paragraphs 21-24 of the judgment). It is difficult to understand how this feature of the law, although relevant to the issue of “lawfulness” (dealt with in paragraphs 37-43 of the judgment), constitutes a factor indicative of the proportional nature of an individual measure taken under the law. Indeed, in some instances it may be the inflexibility of the applicable law, in not allowing for graduated sanctions, which is the source of disproportionality of the interference, in the form of an excessively severe sanction in relation to the misconduct found.

By definition, in every case the application of the test of proportionality, whichever way it goes, depends on “the particular circumstances of the case”. That being so, the first ground mentioned in paragraph 60 of the judgment merely states the obvious and does not offer any substantive reasoning for the conclusion arrived at. In our view, the factors on which the authorities could rely in order to provide for and impose dismissal from office as a suitable sanction for the misconduct held against the applicants are indeed adverted to the judgment, at paragraph 54 where the Court outlines in an introductory manner a number of factual considerations of importance for the application of the relevant Convention principles to the present case. Thus,

“... the respondent State, in its assessment on whether to institute disciplinary proceedings and proceed with dismissals, was entitled to have regard to the requirement that high-ranking civil servants such as the applicants respected and ensured the special bond of trust and loyalty between them and the State in the performance of their functions.”

In brief, for us what makes it possible for dismissal from office to be regarded as a proportionate measure is the fact that, in making use of their official capacity for political purposes in a publicly disseminated statement, the applicants could be taken by the State, as their employer, to have destroyed the special bond of trust and loyalty that they, as relatively senior diplomats in the Ministry of Foreign Affairs, owed to it.

We would therefore have preferred that some such explanation as to the proportionality of the interference with the applicants ’ exercise of their freedom of expression be given – and developed – in paragraph 60, rather than being presented in paragraph 54 as a general introductory consideration.

On a second point, we have noted the conclusion of the Parliamentary Assembly in relation to the violence that occurred in Armenia in March 2008 in the wake of the disputed presidential election that was the subject of the applicants ’ statement. This conclusion (in §6 of the Parliamentary Assembly ’ s Resolution 1605 (2008) on the functioning of democratic institutions in Armenia – quoted at paragraph 26 of the judgment) reads:

“While the outbreak of public resentment culminating in the tragic events of 1 March 2008 may have been unexpected, the Assembly believes that the underlying causes of the crisis are deeply rooted in the failure of the key institutions of the State to perform their functions in full compliance with democratic standards and the principles of the rule of law and the protection of human rights. ...”

As demonstrated by the sad example of the totalitarian regimes in power in some European States prior to and after the Second World War, 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.

The present applicants did not, however, claim that the facts of their case were an illustration of such an extreme instance. They did not, for example, argue that, although their “political” action on 24 February 2008 might in a normally functioning “democratic society” as referred to in paragraph 2 of Article 10 have been prima facie susceptible of justifying a disciplinary measure as severe as dismissal, it was nonetheless called for in defence of “democratic standards and the principles of the rule of law and the protection of human rights”, to use the words of the Parliamentary Assembly. Had the applicants adduced some such argument on the basis of sufficiently plausible material, the Court ’ s scrutiny of compliance with the requirements of paragraph 2 of Article 10 would undoubtedly have been more demanding. As it is, the applicants ’ submissions in this connection were rather directed towards showing that their statement was neutral and not “political” as such (see paragraph 32 of the judgment). It is on that basis that, like our colleagues, we have subscribed to the conclusion in paragraph 59 of the judgment that “no evidence has been adduced that could call into question the respondent State ’ s assessment” as to the necessity to restrict the applicants ’ freedom to engage in “political” activities.