On the Decision of the Constitutional Court of June 30, 2011

Civil servants and the police may speak publicly against the organizations they work for as long as their thoughts are clean and their motives are selfless – that is the decision of the Constitutional Court of Russia. The laws forbidding state employees from criticizing governmental bodies do not contravene the Constitution and the right of freedom of expression. A civil servant or a police officer can be fired for remarks against his or her employer unless it is proved that he or she spoke for the benefit of society without self-interest at heart.

Nikolay Stepanov

Muranov, Chernyakov & Partners
+7 495 783-74-50

Transparency and openness are proclaimed the fundamentals of state and municipal service (which is specifically stated in the Federal Programme ‘Reforming the Civil Service of the Russian Federation’ (2003 - 2005) and in the Federal Programme ‘Reform and Development of Civil Service in the Russian Federation’ (2009 - 2013)). Nevertheless, certain statutory restrictions, including on freedom of speech, comprise an essential part of the legal status of state and municipal servants.

This system of restrictions on public servants has a long history; it began to take shape in the 17th century under Tsar Peter I.

Article 17 of the Federal Law ‘On Civil Service in the Russian Federation’ mentions seventeen prohibitions. Similar restrictions are set with regard to municipal officials in article 14 of the Federal Law ‘On Municipal Service in the Russian Federation’.

One of these prohibitions, set out in paragraph 10 of part 1 of article 17 of the Federal Law ‘On Civil Service in the Russian Federation’ and paragraph 9 of part 1 of article 14 of the Federal Law ‘On Municipal Service in the Russian Federation’, bans public statements, judgments and assessments, including those in the media, regarding the activities of government agencies (local authorities, municipal election commissions) and their heads unless making such comments comprise a part of official duties of such state or municipal employee.

Since breaking these rules (in accordance with article 33 of the Federal Law ‘On Civil Service in the Russian Federation’ and article 19 of the Federal Law ‘On Municipal Service in the Russian Federation’) constitute grounds for termination of the employment contract and dismissal from civil service, the legality of the restrictions is extremely significant for society as a whole.

State and municipal officials enforce the powers of the government therefore the ban on public statements, judgments and assessments of state and municipal

agencies and their managers serves the goals of good governance and unified state policy and stable functioning of government bodies.

It seems, however, that this prohibition also serves the corporate interests of state and municipal services, which cannot be seen as a legitimate reason for limiting freedom of speech and cannot be accepted in a democratic society.

Of course, state and municipal employees, because of their special status, must be loyal but their loyalty should not be applied to the corporate interests of a particular organisation but to the constitutional system of the country.

The Decision of the Constitutional Court of the Russian Federation №14-II of June 30, 2011 seeks to deal with the ‘habit’ of state agencies to use this restriction for the maintenance of corporate solidarity. The courts has explained that it should not be regarded as prohibiting any public statements and assessments and when a civil servant expresses his or her opinion or belief it cannot be considered as a reason for automatic dismissal.

The Constitutional Court has ruled that civil servants can express their views on matters of public interest as well as inform the public about illegal activities or violations of law by the state organisation or its officers and stated that the opinion of a public servant should be reasoned and based on real facts and seek the public interest, and it should not be motivated by grievance, rejection or some personal goals.

Attention of the public to such an opinion matters, said the court, since the public interest in obtaining specific information overrides the duty of civil servants to respect confidentiality.

The court pointed out that public statement of a civil servant should not lead to automatic dismissal but must be assessed taking into account the content of the speech, its social significance and damage to state or public interests.

It should be noted that the Constitutional Court’s position that dismisses absolute prohibition of any public statements complies with the practice of the European Court of Human Rights.

Muranov, Chernyakov & Partners