Human Rights of Armed Forces Personnel
Clearly, the case for preventing disclosure may be stronger for some military matters.
Nonetheless, the Court later found that even the disclosure by a member of the
Romanian Intelligence Service during a press conference about the illegal interception of
communications, after having tried to raise the matter with his superiors and a member of
parliament, was justified in the circumstances.197 The Court conducted a close analysis of the
available avenues for raising allegations of irregularities and concluded that none of them
was likely to be effective. Moreover, the general interest of the public in the disclosure
of information revealing illegal activities within the Romanian Intelligence Service was so
important in a democratic society that it prevailed over the interest in maintaining public
confidence in that institution. Comparable arguments could obviously apply to disclosures
of potential illegality and wrongdoing in the armed forces.
In this context, it should be noted that, in a 2010 resolution, the Parliamentary Assembly
of the Council of Europe (PACE) stressed that legislation on whistle-blowers should be
comprehensive and should cover the private and the public sectors, including members of
the armed forces and special services.198 A 2014 recommendation by the Council of Europe’s
Committee of Ministers noted, however, that in national normative, institutional and judicial
networks established to protect the rights and interests of whistle-blowers, special schemes
or rules, including modified rights and obligations, may apply to information related to
national security or defence.199
Good practice requires that service personnel be provided with effective avenues for
reporting illegal behaviour and human rights abuses to appropriate organs with the capacity
to investigate and remedy such abuses. In the absence of such laws and procedures, it is
likely, based on the above principles, that even disclosures to the media may be protected
under the ECHR, provided that they are sufficiently important and made in good faith.
The balancing of public interests (and the disclosure mechanisms) may take account of the
special circumstances surrounding defence and military matters. It is particularly vital that
armed forces provide avenues for whistleblowing, despite its seeming incongruousness with
the chain of command, as abuse and injustice will erode the moral fabric and morale of a
unit – and even the institution of the armed forces – until it is exposed and remedied.
Different Approaches
The OSCE participating States that responded to the ODIHR questionnaire all reported that
they impose some restrictions on the freedom of expression of armed forces personnel.
These restrictions take various forms.
98
197
European Court of Human Rights, Bucur and Toma v. Romania (Application no. 40238/02, judgment of 8
January 2013).
198
PACE, “Resolution 1729 (2010) on the Protection of Whistleblowers”, 29 April 2010, para. 6.2.
199
Council of Europe, “Recommendation CM/Rec(2014)7 of the Committee of Ministers on the Protection of
Whistleblowers”, 30 April 2014.
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