41232/13

FIFTH SECTION CASE OF BALACCI v. THE REPUBLIC OF MOLDOVA (Application no. 41232/13)             JUDGMENT   STRASBOURG 25 September 2025   This judgment is final but it may be subject to editorial revision. In the case of Balacci v. the Republic of Moldova, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Georgios A. Serghides, President,  Gilberto Felici,  Diana Sârcu, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 41232/13) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 May 2013 by a Moldovan national, Mr Veaceslav Balacci (“the applicant”), who was born in 1980, lives in Chișinău and was initially represented by Mr V. Gribincea, replaced subsequently by Mr I. Chirtoacă, lawyers practising in Chișinău at the time; the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr D. Obadă; the parties’ observations; Having deliberated in private on 4 September 2025, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.  The application concerns the applicant’s dismissal from the Customs Service after he had denounced customs fraud involving public officials. He relies on Articles 6 and 10 of the Convention. 2.  In particular, at the time of the events the applicant was the head of the Origin of Goods Department with the Customs Service. On 30 November 2009 he submitted a criminal complaint to the Prosecutor General denouncing an illegal practice of misrepresenting the country of origin of meat imports to take advantage of preferential terms (transshipment fraud), with the involvement of high level officials in the Customs Service. Criminal proceedings 3.  On 30 November 2009 criminal proceedings were initiated against the applicant for alleged abuse when he had refused to issue certificates of origin to the meat importers concerned, contrary to a court judgment. On 23 December 2010 the criminal investigation was discontinued for lack of criminal elements. The first dismissal and reinstatement 4.  Also on 30 November 2009 the applicant was transferred to another post in the Bălți customs office. 5.  On 10 December 2009 the Customs Service issued a disciplinary reprimand in respect of the applicant for failing to issue certificates of origin to the same meat importer. On 14 December 2009 he was dismissed from his position as a disciplinary sanction for alleged unauthorised leave from 7 to 11 December 2009. 6.  The applicant appealed against the two disciplinary sanctions. 7.  On 16 March 2010 the Chișinău Court of Appeal ruled in the applicant’s favour. The court concluded that the applicant’s refusal to issue the certificates of origin concerned had not been contrary to the relevant court judgment and that the applicant’s absence was justified by the employer’s failure to advance transportation costs. The court also noted that the repeated disciplinary sanctions over several days “[had] constituted a [form] of persecution by the Customs Service for [the applicant’s] complaint of 30 November 2009 lodged with the law enforcement authorities concerning illegalities found in the activity of the [employer].” 8.  On 14 July 2010 the Supreme Court of Justice upheld that judgment. The applicant was reinstated in his position on 16 July 2010. The second dismissal and reinstatement 9.  On 4 August 2010 the applicant requested unpaid leave for the next day and his request was arguably granted. On 5 August 2010 the applicant held a press conference concerning the same customs fraud and the reprisals against him for whistle-blowing. 10.  On 19 August 2010 the applicant was suspended for the duration of the criminal investigation against him (see paragraph 3 above). He was arguably interviewed by his superiors about the press conference that took place on 5 August 2010. On 23 December 2010 the criminal investigation and his suspension was terminated and on 17 January 2011 the applicant was formally reinstated but still was refused access to the office. 11.  On 7 February 2011 the applicant was dismissed for alleged unauthorised leave on 5 August 2010. 12.  The applicant appealed against his dismissal. 13.  On 21 December 2011 the Supreme Court of Justice finally ruled in his favour. The court found that the applicant’s leave on 5 August 2010 had been authorised and that in any event his dismissal had been time-barred. The Supreme Court of Justice also noted that the dismissal had been signed by an unauthorised official, C.T.: “The court rejects the argument according to which C.T. had been authorised by the delegation of 17.02.2010 to sign on behalf of the Director General of the Customs Service, because under the Government Decree no. 4 of 02.01.2007 the Director General may delegate the signature of correspondence, while the decision to hire or dismiss staff is the exclusive prerogative of the General Director.” 14.  The court ordered the applicant’s reinstatement to his previous post as head of the Origin of Goods Department, noting as follows: “The court cannot [order] the [applicant’s] reinstatement in the post of head of the Origin of Goods and Non-Tariff Regulation Section, post which according to the [applicant] corresponds to the current organisational chart of the Customs Service, because the court has jurisdiction to examine the lawfulness of the dismissal order at the time of its issuance and the employee is to be reinstated in the position existent at the time of the annulled dismissal order.” The third dismissal 15.  On 2 January 2012 the applicant returned to work, he was provided with a desk and chair but had no access to the computer. The same day he was given notice of his dismissal on the grounds that due to the 2010 reorganisation of the Customs Service his post had been cut. On 10 January 2012 he was offered an alternative position. On 31 January 2012 he was dismissed. 16.  On 1 March 2012 the applicant appealed against his dismissal arguing, among other reasons, that his post had not been effectively cut, because a post with the same job description continued to exist under a different name (the head of the Origin of Goods and Non-Tariff Regulation Section), and that his dismissal was an act of retaliation for his whistle-blowing. He also argued that the dismissal order had been signed by an unauthorised person, C.T. 17.  On 28 May 2012 the Chișinău Court of Appeal upheld the applicant’s dismissal. The court noted as follows: “After the final judgment of the Supreme Court of Justice of 21 December 2011 [the applicant] was reinstated as head of the Origin of Goods Department. ... But as that post no longer existed due to the reform, the [Customs service] could dismiss [the applicant]. ... He was offered the post of head of the south-east customs bureau, [which] he rejected and was accordingly dismissed. As to argument concerning C.T.’s lack of authority to sign the dismissal order, the [court notes] that his authority derived from a delegation of 17.02.2010 to sign official documents issued by the Customs Service.” 18.  The applicant appealed against the judgment, noting that the mere renaming of posts was not a legitimate ground for dismissal and that an explanatory note of the Supreme Court of Justice of 18 January 2011 recommended that the judges examine in detail the job description of the employee concerned. The applicant further noted that the Customs Service Regulation prohibited the delegation of powers concerning the dismissal of staff, that the delegation of 17 February 2010 had not been in the case‑file and that in another case the Supreme Court of Justice had found that C.T. had no authority to sign a dismissal order (see paragraph 13 above). The applicant reiterated that his dismissal was a reprisal for his whistle-blowing in 2009. 19.  On 29 November 2012 the Supreme Court of Justice upheld the first‑instance judgment. The court relied on exactly the same arguments as the Chișinău Court of Appeal (see paragraph 17 above). This judgment was final. 20.  The applicant complains under Articles 6 and 10 of the Convention about his dismissal related to whistle-blowing as a result of unfair proceedings. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 21.  The applicant complains under Article 10 of the Convention about his dismissal from his position with the Customs Service following his reporting on customs fraud. In his submissions the applicant indicated that his complaint under Article 6 of the Convention had been absorbed into the arguments raised under Article 10 of the Convention. 22.  In view of the nature and scope of the applicant’s arguments (see paragraph 24 below), the Court finds it appropriate to examine this case under Article 10 of the Convention alone. 23.  The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 24.  The applicant submitted that the Moldovan authorities had sought to dispose of him as an inconvenient employee in the light of his disclosure of information concerning fraud involving the management of the customs service. He relied on Guja v. the Republic of Moldova (no. 2) (no. 1085/10, § 49, 27 February 2018). He explained that the three dismissal orders and the criminal proceedings against him had been a retaliation for his whistle‑blowing. In the absence of proper reasons for his dismissal on two occasions, the authorities had staged a reform just to dismiss him a third time. The applicant argued that his previous post with the Customs Service had been downgraded but nevertheless continued to exist, being essential for the operation of the customs service. He noted that in the third set of proceedings, the domestic courts had formally contended that his post had been cut but never assessed the duties which continued to be carried out under a renamed post. The domestic courts had not replied to his argument concerning retaliation for whistle-blowing and had found that C.T.’s authority had been valid, despite previous findings to the contrary. The applicant also argued that despite the reform and the alleged disposal of his post in early 2010, since then he had been formally reinstated in July 2010, unlawfully dismissed on other grounds in February 2011, and reinstated again in December 2011 before his last dismissal in January 2012 (see paragraphs 8 and 15 above). He had never managed to respond to the alternative position offered but in any event that post had been cut in the spring of 2012 and he thus concluded that it had not been a genuine offer. 25.  The Government submitted that the applicant’s last dismissal was a consequence of the 2010 customs service reform and was unrelated to the applicant’s public statements. The procedure for his dismissal had been respected because the applicant had refused an offered alternative position. The Government decree to reform the Customs Service was adopted in January 2010 and resulted in the disposal of the applicant’s post. The Government submitted that the present case should be distinguished from Guja (no. 2) (cited above) and that the case did not disclose a violation of Article 10 of the Convention. 26.  The general principles concerning the protection of whistle‑blowers have been summarized more recently in Halet v. Luxembourg ([GC], no. 21884/18, §§ 120-154, 14 February 2023). 27.  The Court notes that the measure of which the applicant complains concerns his third dismissal. However, for the determination of the existence of an interference with the applicant’s right to freedom of expression, the Court considers of relevance all events that followed the applicant’s whistle‑blowing in 2009 (see Guja (no. 2), cited above, § 49). 28.  The Court notes that the domestic courts have found that the first dismissal of the applicant had been unlawful and had constituted a retaliatory measure for his whistle-blowing (see paragraphs 7 and 8 above). He was formally reinstated on 16 July 2010 and on 5 August 2010 held a press conference about the outcome of the proceedings concerning his initial dismissal for whistle‑blowing (see paragraph 9 above). Shortly after, the applicant was suspended from office in the course of criminal proceedings, which at the time had been pending against him for over nine months (see paragraph 10 above). He was able to take up his duties formally again on 17 January 2011, but was refused access to the office. Several weeks later, on 7 February 2011, the applicant was dismissed again for alleged unauthorised leave on 5 August 2010 – the day of his press conference (see paragraphs 9 and 11 above). He was reinstated in December 2011 after the Supreme Court of Justice had found that the second dismissal had been unlawful. Finally, the applicant was dismissed a third time in January 2011 allegedly due to the reform which had been carried out in 2010 (see paragraph 15 above). 29.  In the course of proceedings concerning his third dismissal, the domestic courts did not seek to clarify why the dismissal related to the reform had taken place two years after the said reform and whether the same duties continued to be carried out by an administrative entity under another name. An explanation on these issues was essential because the Labour Code prevented the creation of renamed posts carrying out the same duties earlier than one year after posts are cut under a reform. The domestic courts also contradicted their own finding from six months earlier concerning C.T.’s authority to sign the applicant’s dismissal (compare paragraphs 13 and 17 above). 30.  In view of the above and on the basis of the material before it, the Court considers that there are sufficiently strong grounds for drawing an inference that the applicant’s third dismissal from his employment was not related to an ordinary labour dispute, but had all the characteristics of another act of retaliation for his disclosing an alleged customs fraud in 2009. The manner in which the events unfolded, and their timing could make an independent observer reasonably conclude that the applicant’s third dismissal was not unrelated to the events of 2009. In fact, his employer did not even attempt to maintain the impression of a simple labour dispute and actively prevented the applicant from taking up duties every time after the courts had ordered his reinstatement, making it obvious to the applicant and others that the applicant was no longer welcome to work at his old workplace (see Guja (no. 2), cited above, § 57). 31.  In these circumstances, the Court sees no reasons to distinguish the present case from Guja (no. 2) (cited above) and considers that the applicant’s dismissal from his employment in January 2012 amounted to an “interference by a public authority” with his right to freedom of expression under the first paragraph of Article 10 of the Convention (§ 58). The Court does not find it necessary to decide whether the above interference was “prescribed by law” and whether it pursued a legitimate aim. With regard to whether it was “necessary in a democratic society”, the Court finds it noteworthy that in the present case the applicant was subjected to three consecutive dismissals and to a criminal investigation after he had reported about an import fraud to the law enforcement authorities. While in the first set of proceedings the domestic courts had found that his dismissal was an attempt by the authorities to dispose of an inconvenient employee, it is striking that in the third set of proceedings this element is absent altogether despite being explicitly raised by the applicant in his appeal (see paragraphs 16 and 18 above). The courts paid no attention at all to the facts after 2009 and did not examine whether the decision to dismiss the applicant a third time was justified under Article 10 § 2 of the Convention, bearing in mind the Court’s case‑law in Guja v. Moldova ([GC], no. 14277/04, ECHR 2008). 32.  In the light of the above, the Court comes to the conclusion that the interference with the applicant’s right to freedom of expression, in particular his right to impart information, was not “necessary in a democratic society”. There has accordingly been a violation of Article 10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33.  The applicant claimed 64,659.90 euros (EUR) plus EUR 884.60 monthly, calculated between the date of the submission of his claims and the date of adoption of the Court’s judgment, in net lost earnings, plus legal interest either in the amount of EUR 41,986 (calculated under the Civil Code) or EUR 258,831 (calculated under the Labour Code), plus a daily interest of EUR 52.70 or EUR 199.10 calculated between the date of the submission of his claims and the date of adoption of the Court’s judgment, all in respect of pecuniary damage. He also claimed EUR 10,000 as non‑pecuniary damage and EUR 5,575 in respect of costs and expenses incurred before the Court. The applicant submitted a table for the calculation of pecuniary damage, a letter from the Customs Service confirming the applicant’s salary in 2012 and a breakdown of provided legal services. 34.  The Government submitted that there was no causal link between the applicant’s claims for pecuniary damage and the alleged violation and that in any event the claim was speculative and excessive. They noted that in case of a violation it remained open to the applicant to seek the reopening of domestic proceedings in view of reinstatement. They argued that the claim for non‑pecuniary damage was also excessive and that the claimed legal expenses were neither necessary, reasonable nor incurred. 35.  The Court considers that the applicant must have suffered pecuniary and non-pecuniary damage as a result of his dismissal. Making its assessment on an equitable basis, it awards him EUR 8,000. It is also noted that under the domestic law the Court’s finding of a violation constitutes a ground for the reopening of the proceedings on which the applicant can rely (see Cavca v. the Republic of Moldova, no. 21766/22, § 71, 9 January 2025). 36.  In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria and the complexity of the case, the Court considers it reasonable to award EUR 1,500 for costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 10 of the Convention; Holds (a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement: (i)  EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; (ii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 25 September 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Martina Keller Georgios A. Serghides  Deputy Registrar President