DISSENTING OPINION OF JUDGE LAZAROVA TRAJKOVSKA

I regret that I am unable to agree to a finding of no violation of Article 10 in this case; in my view, this case should be referred to the Grand Chamber.

Freedom of expression is one of the essential foundations of a democratic society (see Handyside v. the United Kingdom , judgment of 7 December 1976, § 49, Series A no. 24 ). Although it is legitimate for a State to impose on civil servants, on account of their status, an obligation of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 of the Convention (see Baka v. Hungary [GC], no. 20261/12 , § 140, ECHR 2016 ). The s tatus of civil servant does not deprive a person of the protection afforded by Article 10 of the Convention. In such cases, it falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental rights of the individual to freedom of expression and the legitimate interests of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 § 2 (see Vogt v. Germany , 26 September 1995, § 53, Series A no. 323).

I agree with the majority that the applicants ’ dismissal from their posts as a result of their statement published on 24 February 2008 clearly constituted an interference with their right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. I can also agree that this interference was prescribed by law and pursued a legitimate aim. Where I disagree with the majority is in respect of the Chamber ’ s reasoning regarding the necessity and the proportionality of the impugned interference.

In particular, in my view, the Administrative Court did not balance the applicants ’ right to freedom of expression under Article 10 of the Convention with the interests of the State. It does not emerge from the reasoning of the Administrative Court what “pressing social need” in the present case existed to justify, as proportionate to the legitimate aim pursued, the protection of the State ’ s interests over the applicants ’ right to freedom of expression.

Moreover, I disagree with the majority that the dismissal of the applicants, as the most severe measure, did not constitute a disproportionate measure, given the particular circumstances of the case and the available options under domestic law. In this connection, I note that the Court has usually considered dismissal from employment to be a very harsh measure, particularly when other more lenient and more appropriate disciplinary sanctions could or should have been envisaged (see, for example, in other contexts, Guja v. Moldova [GC], no. 14277/04, § 95, ECHR 2008; Fuentes Bobo v. Spain , no. 39293/98, § 48, 29 February 2000, and Kudeshkina v. Russia , no. 29492/05, § 98, 26 February 2009). Armenian legislation provides for a variety of reprimands which can be applied to a diplomat should he or she breach diplomatic ethics, starting with a warning, followed by a reprimand, a severe reprimand, a reduction in salary and finally dismissal. Government Decree “On Approving the Rules of Ethics of a Diplomat” (Decree no. 590 of 20 May 2002) provided, inter alia , that a diplomat is obliged:

“... (b) not to use or abuse his professional (official) capacity and work facilities, or the information obtained when performing his official duties, for personal benefit or the benefit of third persons, as well as for the benefit of parties and non-governmental organisations (including religious ones) or in order to carry out other political or religious activity”

and that

“a breach of these Rules shall entail disciplinary sanctions.”

It appears from the background to this case that the domestic authorities did not consider the imposition of other sanctions, but instead proceeded instantly, as a result of applicants ’ actions, to their dismissal from office. The effects of the applicants ’ dismissal were severe. They were deprived of the opportunity to exercise the profession for which they had a calling, for which they had been trained and in which they had acquired skills and experience (see Vogt v. Germany , cited above, § 60). The fact that there were no real effective safeguards available to the applicants added to the severity of the sanction. It seems that there was no possibility for the applicants to appeal before the administrative organs. It will be recalled, in this respect, that the fairness of the proceedings and the procedural guarantees afforded are also factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10 (see, for example, Kudeshkina v. Russia , § 83, and Baka v. Hungary , § 102, both cited above).

In light of all the foregoing, the reasons put forward by the Government in order to justify their interference with the applicants ’ right to freedom of expression were not sufficient to establish convincingly that it was necessary in a democratic society to dismiss them. Even taking into account the difficult political situation at the time and allowing the national authorities a certain margin of appreciation, to dismiss the applicants from their posts as diplomats was disproportionate to the legitimate aim pursued.